COURT FILE NO.: CR-20-0085
DATE: 2022 10 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Amy Mountjoy for the Crown
- and -
PRITPAL LEHL
Ayesha Abbasi for the Accused
HEARD: July 14, 2022
REASONS FOR SENTENCE
D.E. HARRIS J.
[1] The August 1, 2018 video from a nearby business shows Paul De Pledge dutifully pedaling to work through the early morning sun. He was very close to work when, out of the blue, a large open-air trailer unconnected to any vehicle traversed the road, perpendicular to the movement of traffic. Although it cannot be seen on the video, we know from photographs later taken that it struck Mr. De Pledge, spearing the back wheel of his bike and dragging him and his bike 60 feet across an industrial lawn, only coming to a stop when the trailer, together with Mr. De Pledge and his bike, slammed into a building. It was only by happenstance that this horrific aftermath was discovered two hours after it had occurred.
[2] Mr. Lehl was found guilty of criminal negligence causing death for not securing the trailer properly to the van he was driving and failing to remain at the scene of an accident in which death was caused when he knew that there was bodily harm caused and was reckless whether death would ensue. He was also found guilty of two bail breaches.
[3] These are reasons explaining the appropriate sentence for Mr. Lehl for these offences. The Crown’s position is that 8-10 years is the proper sentence. This was broken down into seven to eight years for the criminal negligence count, one to two years consecutive for the fail to remain charge and six months consecutive for the two breaches, each of them to be concurrent to each other. Ms. Mountjoy would round down to 8-10 years to give effect to the principle of totality.
[4] The defence replies that a total of five years is the correct sentence or possibly, at the high end, six years.
THE Impact on Mr. De Pledge’s Family
[5] The enduring tragedy of this case is that by reason of Mr. Lehl’s negligence, Mr. De Pledge, a man of only 37 years, was violently killed. The ripple effect on the family and the community from such a terrific loss is far reaching and will be felt profoundly throughout the lives of Mr. De Pledge’s family. The errant trailer, when it hit Mr. De Pledge and dragged him across the industrial lawn into the building, also cut a horrifically destructive course through his parents and his family. Their lives have been irrevocably altered. The loss is irretrievable. The death of Mr. De Pledge must be a focal point of this sentencing.
[6] Ten victim impact statements from Mr. De Pledge’s family have been filed on this hearing. The criminal process is not primarily designed for victims. The accused is at the centre of the process. The major questions are guilt or innocence and, if found guilty, the appropriate punishment. Yet offences against the person always have victims. Victims have no other forum except the criminal sentencing process in which to attend, participate and have a direct voice by way of a victim impact statement. It is vitally important to fairness and public engagement with the system of justice that victims be heard and brought into the process in considering the appropriate punishment.
[7] Section 722(1) of the Criminal Code permits a victim to describe in their impact statement,
… the physical or emotional harm, property damage or economic loss suffered by the victim as a result of the commission of the offence and the impact of the offence on the victim.
[8] The sorrow and pain felt by his parents, his brothers, his sister, and all of his extended family is conveyed in the victim impact statements. It is impossible to adequately describe them and the anguish they express. All parents fear the loss of a child; not many have actually suffered it. It is one of those terrible occurrences that no one can fully know without the horror of actually experiencing it themselves. It is beyond imagination. So too is the loss of a sibling.
[9] It is not possible to read these statements of immense, inconsolable grief without being profoundly moved and saddened. The loss of a much-loved son, brother and uncle is devastating. It has deep and permanent repercussions. The victim impact statements speak of a personal and family life forever changed. They describe the catastrophic consequences which have befallen the family and the community.
[10] Here is a very brief summary of a few comments from the impact statements. Mr. De Pledge lived with his parents. That must make his absence and his death of even greater anguish. The day they got the call from the police was nightmarish. It was like a bomb going off. Paul was a beautiful son and a fine man. He was full of life. He was the go-between for family members; he was the nucleus. Paul was gentle, generous and kind. Many of the family members talk about going to the scene of the death frequently since the offence. That is a measure of their utter despair. They all feel a loss that will never heal, a loss that can never be replaced.
[11] Many of the family members have been overcome with grief, depression, emptiness, fear and sleeplessness. They are struggling with life.
[12] Mr. De Pledge’s family attended each court hearing in this case. I would like to acknowledge them now and thank them for coming. I acknowledge your presence here throughout this trial. You were attentive and diligent and unfailingly in your watchful eye on the progress of this case. The love for Paul you carry with you, including into this courtroom, is clear for all to see.
[13] The preamble to the Victims' Bill of Rights, 1995, S.O. 1995, c. 6 reads,
The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.
[14] Justice Hill, in his excellent discussion of victim impact issues in R. v. Gabriel, 1999 CanLII 15050 (ON SC), [1999] O.J. No. 2579, 137 C.C.C. (3d) 1, 26 C.R. (5th) 364 at para. 19 extolled the virtues of the process:
Victim participation in the trial process serves to improve the victim’s perception of the legitimacy of the process. The satisfaction of being heard, in the sense of a direct submission to the court, enhances respect for the justice system on the part of the harmed individual, and over time, the community itself. Incidental to the victim impact statement process is the ability of the victim to secure a sense of regaining control over his or her life and the alleviation of the frustration of detachment which can arise where the victim perceives that he or she is ignored and uninvolved in the process.
A significant concern of the sentencing hearing is finding a disposition tailored to the individual offender in an effort to ensure long range protection of the public. As a consequence, much becomes known about the accused as a person. In this process, there is a danger of the victim being reduced to obscurity - an intolerable departure from respect for the personal integrity of the victim. The victim was a special and unique person as well — information revealing the individuality of the victim and the impact of the crime on the victim’s survivors achieves a measure of balance in understanding the consequences of the crime in the context of the victim’s personal circumstances, or those of survivors.
[15] Justice Sharpe in the subsequent Court of Appeal case of R. v. Jackson 2002 CanLII 41524 (ON CA), [2002] O.J. No. 1097, 163 C.C.C. (3d) 451, 58 O.R. (3d) 593 said,
55 By enacting the victim impact provisions as part of the sentencing process, Parliament has indicated the importance of giving due regard to the views and concerns of victims and to the need to treat victims with courtesy, dignity and respect.
[16] There are naturally some limitations to the victim impact process and its full integration into the sentencing process. As the case law concludes, the process is not “tripartite”. The criminal process is between the Crown (the public) and the defendant (the individual). Victims are not permitted to suggest what sentence they believe ought to be imposed: Gabriel at para.29-33; Jackson at para. 55. There are two reasons for this. First, because the process is between the public and the individual offender, it is only the Crown as the representative of the public who is permitted to speak to the sentence that ought to be imposed in a particular case. Second, the victims cannot know the principles of sentence as they apply to a particular case nor ought they be expected to. Sentencing must adhere to the rule of law and is based on fundamental principles and values set out in the Criminal Code and in judge made common law.
[17] For example, a central tenet of sentencing law that may not be well known is the attitude towards prison mandated in the sentencing process. The principle of restraint is entrenched in the Criminal Code. In the Supreme Court case of R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, it was said:
133 The common law principle that even where a term of imprisonment is necessary, it should be the lightest possible sanction in the circumstances is codified in s. 718.2(d) Cr. C.: Ruby, Chan and Hasan, at p. 510. This Court has noted Parliament's desire to give increased prominence, for all offenders, to this principle of restraint in the use of prison as a sanction: Proulx, at para. 17. [citations omitted]
[18] In the same vein, the Supreme Court of Canada endorsed the following statement in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 54,
… imprisonment should be avoided if possible and should be reserved for the most serious offences, particularly those involving violence. [the reports on sentencing] all recommend restraint in the use of incarceration and recognize that incarceration has failed to reduce the crime rate and should be used with caution and moderation. Imprisonment has failed to satisfy a basic function of the Canadian judicial system which was described in the Report of the Canadian Committee on Corrections entitled: “Toward Unity: Criminal Justice and Corrections” (1969) as “to protect society from crime in a manner commanding public support while avoiding needless injury to the offender.” [Emphasis in original]
[19] In reality, restraint is difficult to apply when confronted with the enormity of a loss of a life. The pain and sorrow of Mr. De Pledge’s death weighs very heavily on the community and the court. It is made only the more poignant by the knowledge that there was nothing natural about Paul De Pledge’s death, that it was eminently preventable if the proper care had been taken.
The Proportionality Requirement
[20] The quest for a fair and just response to such a crime as this is generally felt by the public as a desire for a punishment equivalent to the crime. Measure for measure, an eye for an eye. Mr. Lehl’s actions caused Mr. De Pledge’s tragic death. The injustice of Mr. De Pledge’s death must be mirrored in meting out justice to Mr. Lehl. A very high sentence should be imposed. But that is not the way our system works. There is clearly no punishment or remedy that can in any way be equivalent to the senseless, sudden death of Mr. De Pledge or can remedy his death. If only there were. But that is simply not humanly possible.
[21] The rule of law and adherence to Canadian sentencing principles requires that the sentence be proportionate to the seriousness of the offence and the blameworthiness of the offender. This is mandated by Section 718.1 of the Criminal Code. The Supreme Court said in Lacasse, at para. 12:
… proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. 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.
[22] The seriousness and gravity of the offence encompasses as a central feature, as I have said, the tragic consequence of Mr. De Pledge’s death. That is the central fact that must be considered. But contemplation of this case extends beyond it to encompass an assessment of Mr. Lehl’s moral blameworthiness.
The Criminal Negligence Causing Death Case Law
[23] On sentencing, part of the process generally involves a comparison with other similar cases to provide some guidance to the fair and appropriate sentence to be imposed. As the Criminal Code states, “A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”: Section 718.2(b) of the Code. The method required is that other cases should be examined to assist and orient a sentencing judge in determining the appropriate sentence. No facts of a case nor background of the offender are identical from case to case so this process is far from an exact science. But the purpose is to arrive at some degree of consistency in sentences imposed by the courts.
[24] For the Crown, Ms. Mountjoy relied on several cases to support her request for a sentence of 8-10 years in jail. In R. v. Yesno 2015 ONSC 6350, the offender deliberately drove his vehicle at the victim’s bicycle, killing him. A total sentence of seven years was imposed—six years for criminal negligence causing death, one year consecutive in addition for fail to remain. Legally and morally, deliberate and intentional causing of harm has no similarity to Mr. Lehl’s crime and cannot provide any assistance as to a punishment that fits the offence and the offender.
[25] In R. v. Shore, [1999] O.J. No. 1545 (Ont.C.J.) a nine-and-a-half-year sentence was imposed for criminal negligence causing death, criminal negligence causing bodily harm and fail to remain at the scene of an accident. The collision in that case occurred as a result of a police chase of the offender who was driving a stolen vehicle. The Court of Appeal upheld the sentence, making specific reference to the deliberateness of the offender’s conduct: [2001] O.J. No. 3801 That too is a case bearing no similarity to the case we are dealing with here where the conduct, as grossly negligent as it was, was not deliberate. Nor was this an attempt to evade police apprehension, a strong aggravating factor.
[26] In R v Tolouei, 2019 ONCJ 609, the accused was sentenced to five years and nine-months in jail. He was travelling at 168 km/hr in a 50 km/hr zone when he caused the collision taking the victim’s life.
[27] The only case put forward by the Crown that has some similarity to this case is R. v. Quigley, 2017 ONSC 389 in which the sentence was five years. The truck driver offender failed to maintain his brakes in proper order, failed to notice or ignored their malfunctioning, and as a result caused the fatal accident. Unlike the other cases presented, this was a true case of negligence, like Mr. Lehl’s.
[28] Ms. Abassi relied on several cases of criminal negligence. In R. v. Sheikh [2021] O.J. No. 3929, 2021 ONSC 5119, my sister Justice Woollcombe imposed five years for criminal negligence where one victim was killed and another seriously injured. That case had the major aggravating factor of impaired driving. That is lacking in this case. Similar is R. v. Boily [2020] O.J. No. 4514, 2020 ONCJ 465; see R. v. Boily, 2022 ONCA 611 (driving prohibition vacated), where the sentence was also 5 years. In R. v. Spears, [2010] O.J. No. 4400, 2010 ONSC 5710, four years was imposed for criminal negligence causing death and causing bodily harm. The driving was extremely aggressive in that case.
[29] The cases relied upon by Ms. Mountjoy in which the general range of imprisonment was in the 8-to-10-year range are all distinguishable. Cases of either alcohol or drug impairment are markedly different. That, as the case law over many decades demonstrates, is a fundamental, indeed pivotal, aggravating factor greatly increasing a sentence. Or, in other cases in the same range, there is deliberate conduct such as a police chase. Or, in a third category, there are the shocking cases of multiple deaths.
[30] It might be thought that how an accused caused death is immaterial as long as he did cause death in some way or another. That death was caused is the only thing that really matters. But again, our law makes a fundamental distinction between deliberate intentional conduct and negligent conduct. Sentences considering intentional conduct are of little assistance to deciding the result in this case.
[31] The Supreme Court held in R. v M.(C.A.), 1996 SCC 230, one of the leading cases on sentencing in Canada,
- In discussing the constitutional requirement of fault … in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645, I noted the related principle that “punishment must be proportionate to the moral blameworthiness of the offender”, and that “those causing harm intentionally [should] be punished more severely than those causing harm unintentionally”. (Emphasis added)
[32] In conclusion, the precedents relied upon by the Crown to support the sentence requested all have significant differences and aggravating features absent from this case. In the end, they provide limited guidance in the sentencing process. Based on the criminal negligence cases that do have some correspondence and similarity to the offence here, the range seems to be approximately 4- 5 years.
THE AGGRAVATING FACTORS OF THE CRIMINAL NEGLIGENCE CAUSING DEATH OFFENCE
[33] The standard of care expected of a driver is derived from the extent of the danger of driving as an activity. Driving is an inherently hazardous activity but because we do it routinely, the dangers are not always apparent. There is a deceptive aspect.
[34] Vehicles of substantial mass travel at high speed. Towing objects attached to a vehicle adds another level of dangerousness. There is a risk that an object being towed or that is attached to the roof or back of a motor vehicle may detach and collide with other vehicles, pedestrians or other objects. Great care must be taken. That is why Section 80(1) of the Highway Traffic Act R.S.O. 1990, c. H.8 requires two means of attachment for trailers. One functions as a fail safe if the other system breaks down.
[35] In this case, the trailer being towed was heavy. The safety hooks were not attached as required. There was obviously something wrong about how the trailer was attached to the hitch as well.
[36] This offence occurred because Mr. Lehl was hasty and exceedingly careless. Mr. Lehl’s driver’s licence was suspended at the time for unpaid fines. He had planned to steal the trailer from the U-Haul lot where it sat. He came with his own ball hitch and with a stolen van equipped to tow vehicles. He must have had some experience towing vehicles and some knowledge of what is involved.
[37] I am convinced that the theft Mr. Lehl was committing was the reason that he was so rushed and did not take the necessary precautions in attaching the trailer. He wanted to get out of the lot as quickly as possible. The entire process of arrival, attaching the trailer, and leaving with it was exceedingly short, much shorter than the evidence indicated it ought to have taken to properly attach a hitch. This haste and carelessness was a causal factor in the offence and is a strong aggravating circumstance on sentence.
[38] This offence was not charged as a driving offence but it certainly was one. Of course the crux of the offence was the negligent attaching of the trailer. That was obviously not enough in itself because, without the trailer being pulled by a vehicle, this offence would not have occurred. The two together created the hazard. The result was that the van Mr. Lehl was driving, because of the negligent attachment of the trailer, was operated in a manner that was dangerous to the public. The driving itself may have been unobjectionable but towing a heavy object that was not properly attached was criminally negligent.
[39] Mr. De Pledge was an avid and experienced cyclist. But he had no chance against the harrowing, destructive path of the trailer. No one on a bicycle would have. A cyclist is the most vulnerable person on the road, having none of the protection a car or truck has. If it had not been Mr. De Pledge victimized by this act of criminal negligence, hypothetically it could well have been a pedestrian or a vehicle. The hazard created by the runaway trailer threatened everyone in the area.
[40] Mr. Lehl was a drug addict at the time of this tragedy. But there was no evidence that could prove impairment beyond a reasonable doubt at the time of hooking up the trailer and driving. Ms. Joyce Pasiecznik who was in the passenger seat and was Mr. Lehl’s girlfriend testified that they generally smoked heroin first thing in the morning. Ms. Mountjoy for the Crown, quite correctly, did not attempt to rely on this evidence as proof that Mr. Lehl was high on heroin at the time. Aggravating factors must be proved beyond a reasonable doubt: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; Section 724(3)(e) of the Criminal Code. General habitual use is clearly insufficient to prove use on a particular occasion. Nonetheless, based on Ms. Pasiecznik’s evidence of regular heroin use and other drug use, I can conclude beyond a reasonable doubt that the theft of the trailer and the criminal negligence and fail to remain offences took place in a milieu permeated by criminality.
[41] It was argued that the video shows the van driving considerably faster than the other vehicles on the road. It is difficult to determine speed from the video. I cannot find excessive speed beyond a reasonable doubt.
THE OFFENCE OF FAILING TO REMAIN
[42] This was an exceedingly serious fail to remain. Mr. Lehl saw the trailer hit Mr. De Pledge and carry him across the industrial lawn, crashing into the building. We know this because in the video the van he was driving slowed down and almost stopped simultaneous with the trailer cutting across the road. At the pertinent time, there was only a short distance between the van and where the trailer jumped the curb, striking Mr. De Pledge. The proximity and the slowing down of the van established beyond a reasonable doubt that Mr. Lehl was aware of the catastrophe. Nonetheless, he sped up and drove away.
[43] Mr. Lehl had the legal obligation under the Highway Traffic Act and the Criminal Code to stop and render assistance. He would likely have been immediately apprehended for stealing and negligently attaching the trailer if he had done so. Yet given that he was entirely responsible for the tragedy that he watched unfold before his eyes, this seems only fitting.
[44] Based on what Mr. Lehl saw, he would have known that Mr. De Pledge was severely injured. Despite this knowledge, he simply drove off. A terrible fact of this tragedy is that Mr. De Pledge lay there for two hours before being discovered and before help was summoned.
[45] The victim impact statements universally express great distress that their loved one lay alone for two hours. While the pathology and other evidence prove that Paul died instantaneously, the family nonetheless feel great pain over this. This is a good example of how victim impact statements can sensitize a sentencing judge to consequences of the offence that might otherwise not be evident or appropriately emphasized.
[46] The key aggravating factor of the fail to remain offence is that a person in Mr. Lehl’s position would know that Mr. De Pledge urgently needed medial attention after the crash and could potentially have been saved if he had received it. Mr. Lehl’s total abdication of responsibility is a step beyond most failure to remain convictions. While it appears from the pathology report that Mr. De Pledge died immediately after the trailer struck him, Mr. Lehl or a reasonable person could not possibly have known that from what he saw.
[47] Mr. Lehl showed a complete disinterest in Mr. De Pledge, a victim of his own gross negligence. This lack of responsibility very substantially rachets up the gravity of the offence and his moral blameworthiness.
[48] Ms. Mounjoy’s position on the fail to remain count, in view of the importance of ensuring totality with the criminal negligence count, was one to two years. Totality requires that when two or more sentences are imposed, their cumulative length ought not to impose a disproportionate punishment on an offender. While the sentences for each might be reasonable, the two sentences together could be unduly harsh: see Section 718(2)(c) of the Criminal Code.
[49] I advised during her submissions that this position, in my view, was too lenient. In R. v. Blake-Samuels, 2021 ONCA 77, 69 C.R. (7th) 274 (Ont. C.A.) at paras. 19-30, the Court of Appeal confirmed that a trial judge should alert the parties if he or she believes that the Crown’s position is too low and give counsel an opportunity to make further submissions. In this circumstance, it is arguable because it was not the global sentence which was below the range but only a component of it, this line of authority was not engaged. Nevertheless, there is no harm in giving such a warning. At the least, it will help to focus counsel’s submissions. In the end, neither counsel appeared to disagree that the sentence recommended by the Crown on the fail to remain was unacceptably lenient.
[50] There are a number of cases in which sentences of two years or more have been handed down for fail to remain when death is caused: see e.g., R. v. Didechko, 2016 ABQB 552 (Alta. Q.B.); R. v. Ford, 2019 NBPC 17; R. v. Doucet, 2009 ABCA 416; R. v. Meads, 2010 ABPC 109. It must be remembered that this offence is punishable by a maximum of life in prison.
[51] A secondary aggravating feature in this case was Mr. Lehl’s efforts to conceal his culpability in the death of Paul De Pledge. He very soon after the crime drove the van to a residential street, abandoning it. A home surveillance video shows him removing the back licence plate and putting it inside the van where the police later found it. The purpose was to put distance between the van, which was ultimately identified as being driven by Mr. Lehl, and his negligent attachment of the open-air trailer. He and Ms. Pasiecznik then drove off on a motorcycle. While the fail to remain was an attempt to avert criminal and civil responsibility; the abandonment of the van was a continuation of the same cowardly attempt to avoid apprehension.
THE OFFENDER
[52] Mr. Lehl was born and grew up in the United Emirates moving to Canada with his family when he was 16. He is the oldest of four siblings and is now 44. The move was hard on him, there was a big cultural shift. He dropped out of school in grade 12 and started drinking and smoking marijuana. He clashed with his parents; his father was a strict disciplinarian. Mr. Lehl started working in a factory and, in 1996, his criminal record began. There was a possession of marijuana charge and then in 1999, a robbery conviction for which he received 9 months in jail.
[53] He went to Sheridan College for a computer program but did not finish. He worked in his father’s auto shop. The drinking and marijuana smoking continued.
[54] In 2004 he moved to New Brunswick and ran a motel his father had bought. He was all alone and this was unsettling. The motel was sold and he moved to Calgary, British Columbia and St. John, before moving back to Toronto in 2015 to help his aging parents. There was also some time spent in Yellowknife.
[55] Mr. Lehl was married in Calgary. While there, he got into a serious car accident and injured his back. He became dependent on pain killers and then, when it became difficult to obtain them, was introduced to heroin in 2016.
[56] Ms. Abassi advises that heroin addiction is a very serious issue in Peel region amongst the South Asian community and, in particular, with Punjabi men.
[57] Mr. Lehl’s strict father never visited him in custody. The father was diagnosed with cancer in late 2020. It was submitted that it is torture for Mr. Lehl not be able to be with his father.
[58] Mr. Lehl’s criminal record, aside from the entries already mentioned, includes two fail to comply with bail orders, one assault with a weapon for which he received four months custody, possession of drugs and obstruct peace officer.
THE PRINCIPLES OF SENTENCING
[59] The main principles of sentencing relevant in this case, because of the seriousness of the offences and Mr. De Pledge’s death, are general deterrence and denunciation. The premise of general deterrence is that the sentence imposed should send a strong warning to the public that criminal offending of this nature will be firmly and sternly dealt with: P. (B.W.); N. (B.V.), 2006 SCC 27, [2006] S.C.J. No. 27, [2006] 1 S.C.R. 941, at para. 2 (S.C.C.).
[60] Denunciation of criminal offences is similar. The purpose is to positively affirm and reinforce fundamental Canadian societal values through the condemnation of the offender’s criminal conduct: M.(C.A.) at para. 81; R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 at 105; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.), at para. 102.
[61] General deterrence has relevance for all serious crime. However, it is at its most powerful when aimed at an offence where there is some planning and aforethought. It is in these circumstances that an offender will hopefully stop and think about the dire consequences that could befall him if he follows through and commits the offence he is contemplating: R. v. Mulvahill [1993] B.C.J. No. 16, 21 B.C.A.C. 296 at para. 300 (B.C.C.A.).
[62] Criminal negligence causing death by definition is not an intentional or deliberate offence and does not involve planning. In fact, it is the lack of foresight that so often, as was the case here, involves criminality. Nonetheless, a general admonition to the public to take great care in towing objects ought to be addressed by the sentence for Mr. Lehl.
[63] However, denunciation is the more important principle in these circumstances. The sentence imposed must comprehend the full scope of this tragedy and the completely unnecessary and tragic death of Paul De Pledge. The values of safety and care for our fellow community members predominates in respect to the criminal negligence count.
[64] With respect to the fail to remain count, however, this was an offence in which there was a conscious decision made by Mr. Lehl not to stop and not to live up his responsibilities. A sentence should be of sufficient length to warn the public that this abandoning of responsibility cannot be condoned. With this offence, general deterrence is a particularly important value to vindicate.
THE MARSHALL ISSUE
[65] In R. v. Marshall, [2021] O.J. No. 2757, 2021 ONCA 344 and R. v. Duncan, 2016 ONCA 754 the Court of Appeal held that the credit known as Duncan credit focuses on,
particularly difficult and punitive presentence custody conditions ... The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279.
[66] As opposed to Summers credit which permits a deduction for onerous pre-trial custody under Section 719(3.1) of the Criminal Code up to a ratio of 1:1.5, Marshall or Duncan credit has a different function. Both act as a mitigating factor: Marshall at paras. 50-53.
[67] In this proceeding, as is often the case, documentary evidence has been filed establishing the lockdowns and triple bunking experienced by Mr. Lehl. Counsel asks for the following,
a. 0.5 days per lockdown day (321 days x 0.5 = 161days);
b. 1 day per incident of triple bunking (127 days);
c. 30 days for having contracted COVID-19 in custody; and
d. 120 days reduced from the overall sentence in light of the pandemic induced
conditions.
Total: 318 days (10 months and 6 days)
[68] The Court of Appeal in Marshall expressed a preference for not quantifying the Duncan credit into a specific number while at the same time allowing quantification if a trial judge finds it necessary. The risk of quantification is that it will be treated like a discount on sentence, as opposed to mitigation which is its true nature. It could, based on this mischaracterization, take on undue significance in the sentencing process.
[69] Logic commends this approach. Mitigating and aggravating factors are not generally quantified in sentencing reasons. The fact is, there is a shifting scale. A mitigating factor may take on greater significance in a particular sentencing than in another one. For example, the weight of mitigating factors may well be lower the more serious the offence. As an offence increases in seriousness, the importance of individual factors begins to recede into the background.
[70] However, it is important in fairness to the offender that particularly harsh and punitive jail conditions be identified when they do exist. A happy by-product is that the public will be informed, as they should be, about sub-par conditions in jails. Some of these, such as the harsh conditions in jail during COVID, may of course not be the fault of the authorities.
[71] For these reasons, I prefer to quantify the Marshall credit. Reducing the credit to a number makes palpable poor conditions in jail when they occur, such as triple bunking and extreme COVID restrictions. That advances an important public information and educational function. Also, unlike an offender’s unfortunate antecedents and other mitigating factors, for example, Marshall credit is capable of being quantified. Lastly, quantification is more amenable to appellate review to ensure unreasonable mitigation has not been granted.
[72] There is bound to be an aspect of arbitrariness to quantifying Marshall credit. It is unavoidable. But an attempt must be made to ascertain the harshness of the conditions as crude and imprecise as it may ultimately be.
[73] Up to the present, Mr. Lehl has spent 1067 days in pre-trial and pre-sentence custody referable to these charges. I do not agree with the 10 months the defence would attribute to Marshall credit for this almost three years in custody. This is excessive in the context of such a serious offence and the tragic consequences at issue here. I would grant 5 months mitigation to the factors identified by the defence.
DOWNES CREDIT
[74] The Court of Appeal in R v Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No 555 (C.A.) held that time spent on a restrictive bail may, like the Marshall issue, constitutes a mitigating factor on sentence: see also R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145 at para. 108. A trial judge has a broad discretion in this regard.
[75] Again, I prefer to quantify the Downes issue for the same general reason as given with respect to the Marshall issue. Indeed, the court in Downes credited the offender with five months for the 18 months he was on a stringent bail.
[76] Ms. Abbasi askes for 90 days credit for the 12 months Mr. Lehl was on the very tight bail. This is roughly the same ratio that was granted in Downes itself. I would not agree to this credit in this case. However, these offences are substantially more serious than those in Downes. The sentence imposed in Downs was 21 months. A man was killed in this case. Mitigation with respect to the offence should have a smaller role to play in the overall sentence. The seriousness of the offence and its terrible consequences are uppermost in this situation and push mitigation to the background.
[77] I would grant 45 days for Downes credit in this case.
CONCLUSION
[78] In crafting a fair sentence, proportionate to the gravity of the offences and the degree of responsibility of Mr. Lehl, I have examined sentences imposed in similar cases of criminal negligence causing death and failing to remain. I have looked at Mr. Lehl’s high degree of personal responsibility for these offences and at his criminal record. I have adverted to the main principles of sentencing; that is, general deterrence and denunciation. I have also taken into consideration the tragic death of Paul De Pledge and the devastating and permanent impact his death has had on his parents, his siblings and the rest of his family. The aggravating and mitigating factors of the offences have been incorporated as well.
[79] In the end, balancing all the different considerations, in my view the appropriate global, total sentence is six years in jail. I would break this down to three and a half years for criminal negligence causing the death of Paul De Pledge and two and a half years for the fail to remain. Each of the two sentences would be longer if it were not necessary to respect the principle of totality.
[80] These two counts will be consecutive to each other as they are separate wrongs, separate delicts, and there are denunciatory and general deterrence objectives that must be satisfied for both. I would sentence Mr. Lehl to concurrent time of 90 days for each of the two breaches of bail, concurrent to each other and concurrent to the other sentences. The breaches were being with Ms. Pasiecznik and being out prior to 6 a.m., in violation of his curfew. I would make them concurrent to give effect to totality.
[81] Mr. Lehl has already served the bulk of his sentence in pre-trial custody. Almost, three years is an unfortunately long period of time to be in pre-trial custody. It is recognized to be more onerous than post-sentence custody. The Summers credit requires that I give 1.5 credit for the 1067 days spent in pre-trial custody. This amounts to 1601 days of credit (4 years, 4 months and 21 days).
[82] I would use 912 days of this credit with reference to the two-and-a-half-year sentence on the fail to remain count. This calculation results in a time served sentence on the fail to remain count.
[83] The remaining 689 days of credit will apply to the criminal negligence causing death conviction, leaving 588 days left to serve. The Marshall and Downes credits attribute another 195 days in total towards the criminal negligence causing death conviction. The sentence to be meted out today therefor on the criminal negligence conviction is 394 days or one year and one month.
[84] I agree with the Crown that there should be a 10-year driving prohibition under Section 320.24(4) and ss. (5)(a) of the Code. It will, by reason of the Court of Appeal judgment in Boily, be attached to the fail to remain count. There will be a DNA order on both counts.
[85] That is the sentence for Mr. Lehl.
D.E HARRIS J.
Released: October 14, 2022
COURT FILE NO.: CR-20-0085
DATE: 2022 10 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
- and -
Pritpal Lehl
REASONS FOR SENTENCE
D.E HARRIS J.
Released: October 14, 2021