COURT FILE NO.: CR-19-8597-00

DATE: 20230605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

NATHAN COATES

Defendant

F. Giordano, for the Crown

P. Lindsay and N. Da Silva, for the Defendant

HEARD: May 9-11 and 13; June 6-10, 17, 20, 21, 23 and 24; November 3, 2022; January 26, 2023

REASONS FOR Sentence

Dawe J.

I. Overview

[1] One Sunday evening in September 2019, Nathan Coates, an off-duty York Regional Police officer, collided with an oncoming motorcyclist on Highway 7, just west of York-Durham Line. The motorcyclist, Stewart Sweeney, was thrown from his motorcycle and off the road, with his left leg shattered below the knee. Remarkably, he managed to reach his cell phone and call 911. It took almost half an hour for police and paramedics to arrive and take Mr. Sweeney to hospital. His left leg was so badly injured that it had to be amputated above the knee.

[2] Instead of stopping after the accident and summoning help for Mr. Sweeney, Mr. Coates continued driving for another 3.8 kilometres before pulling his badly-damaged SUV over to the side of the road. He then made a series of phone calls to his parents and his wife, but did not call for help for Mr. Sweeney.

[3] On November 2, 2022, I released my judgment acquitting Mr. Coates of charges of impaired operation of a conveyance and dangerous operation causing bodily harm, but finding him guilty on a charge of failing to stop after an accident and render assistance, contrary to s. 320.16(1) of the Criminal Code.

[4] I must now determine a fit sentence for this offence.

II. Positions of the parties

[5] For the Crown, Mr. Giordano submits that I should sentence Mr. Coates to three years imprisonment, and also make various ancillary orders.

[6] For the defence, Mr. Lindsay argues that I should impose a non-custodial sentence. Alternatively, Mr. Lindsay argues that if I do impose a custodial sentence, I should permit Mr. Coates to serve it in the community as a conditional sentence.

III. Analysis

A. General principles

[7] Sentences “must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s. 718.1), and must reflect the purposes and principles of sentencing that are codified in Part XXIII of the Criminal Code and established by the sentencing case law.

[8] To determine a fit sentence for Mr. Coates, I must consider the applicable statutory provisions and case law, and must identify the range of appropriate sentences for his offence. I must then situate the sentence I impose on Mr. Coates within this range by considering his particular circumstances and the specific circumstances of his offence, and by balancing the mitigating factors in his case against the aggravating factors that have been established beyond a reasonable doubt.

B. The sentencing range for the s. 320.16(1) Criminal Code offence of failing to stop a conveyance after an accident

1. The s. 320.16 offences

[9] Mr. Coates has been found guilty of committing an offence under s. 320.16(1) of the Criminal Code, which states:

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.

[10] Subsections 320.16(2) and (3) create aggravated forms of the “fail to stop” offence that apply respectively when a person commits the offence under s. 320.16(1) and the accident at issue results in bodily harm or death.

[11] The maximum punishments for these three versions of the fail to stop offence, when they are prosecuted by indictment, are:

(i) 10 years imprisonment for the s. 320.16(1) offence (as provided in s. 320.19(5));

(ii) 14 years imprisonment for the s. 320.16(2) offence (as provided in s. 320.2(a)); and

(iii) life imprisonment for the s. 320.16(3) offence (as provided in s. 320.21).

[12] There is no dispute in this case that Mr. Sweeney suffered bodily harm. Mr. Coates has also acknowledged that he immediately realized after the accident that he had hit a motorcycle. It was obvious in the circumstances that the motorcyclist would have suffered some injury that was more than trivial or transitory. I am accordingly satisfied beyond a reasonable doubt that Mr. Coates either knew or was reckless as to whether Mr. Sweeney had suffered bodily harm.

[13] However, Mr. Coates was not charged with the aggravated form of the fail to stop offence in s. 320.16(2), which carries a maximum punishment of 14 years imprisonment. Rather, he was only prosecuted for the lesser offence under s. 320.16(1), which carries a maximum punishment of 10 years imprisonment.

[14] While Mr. Coates’s awareness of the nature of the accident is something I can properly treat as an aggravating factor, I cannot sentence him as if he had been charged and convicted of the more serious s. 320.16(2) offence.

2. Comparing the s. 320.16(1) offence to the previous s. 252 offences

[15] The three versions of the offence of failing to stop a conveyance in s. 320.16 that I have just discussed have replaced the three offences that used to be found in s. 252 of the Code, which has now been repealed.

[16] The previous offences under s. 252 had a similar structure to the current offences under s. 320.16, in the sense that there was an offence of “fail to stop” simpliciter (s. 252(1.1)), and aggravated versions of the offence that applied when the accused knew or was reckless about whether the accident had caused bodily harm or death (ss. 252(1.2) and 252(1.3)).

[17] However, there are two significant differences between the old and new offences.

[18] First, it was an essential mental element of the previous s. 252 offences that the accused must have failed to stop “with intent to escape civil or criminal liability”. Although s. 252(2) created a rebuttable presumption that this intention existed “in the absence of evidence to the contrary”, when evidence to the contrary existed, the Crown had to prove the requisite subjective intent beyond a reasonable doubt: see R. v. Durani, 2022 ONCA 17, at para. 13; R. v. Gosselin (1988), 1988 CanLII 7065, 45 C.C.C. (3d) 568 (Ont. C.A.).

[19] In contrast, the s. 320.16 offences only require proof that the accused failed to stop a conveyance either knowing that it had been in an accident, or being reckless about this. These are both subjective mental states: see Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at pp. 581-82. However, the Crown no longer has to prove that the accused had any particular motivation for not stopping.

[20] Second, the maximum punishments for two of the three new offences under s. 320.16 are higher than the previous punishments for the equivalent s. 252 offences.

[21] Fail to stop simpliciter under s. 320.16(1) now carries a maximum punishment of 10 years imprisonment when prosecuted by indictment, which is double the maximum penalty of 5 years imprisonment that applied to the equivalent offence in s. 252(1.1). The maximum punishment for the s. 320.16(2) offence of failing to stop knowing or being reckless about the accident having caused bodily harm has also been raised to 14 years imprisonment, from the previous maximum of 10 years under s. 252(1.2). However, in cases where the accused knows that the accident has resulted in death, or is reckless about this, the maximum punishment was, and still remains, life imprisonment.

[22] As I have already noted, Mr. Coates was charged with, and has been found guilty of, the offence under s. 320.16(1), which has a maximum punishment of 10 years imprisonment.

[23] For the Crown, Mr. Giordano submits that Parliament’s decision to increase the maximum penalty for the s. 320.16(1) offence to 10 years imprisonment should translate to higher sentences being imposed for this offence, as compared to the sentences that were previously imposed for the similar s. 252(1.1) offence, which had a maximum punishment of only 5 years imprisonment. He relies on the Supreme Court of Canada’s holding in R. v. Friesen, 2020 SCC 9, at para. 100, that “[t]o respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.”

[24] I agree that Parliament’s policy decision to raise the maximum sentence for the fail to stop offence must be taken into account. However, in the particular circumstances of this case, I think this factor is largely offset by the Crown’s decision to prosecute Mr. Coates only for the s. 320.16(1) offence, rather than for the aggravated form of the offence in s. 320.16(2).

[25] As I will discuss later, the closest comparator cases on their facts under the old legislative scheme that I have been able to identify also involved defendants who fled accidents in circumstances where it would have been obvious to them that some other person had suffered bodily harm. However, these defendants were all charged with, and found guilty of, the aggravated version of the fail to stop offence in s. 252(1.2), which carried a maximum punishment of ten years imprisonment.

[26] Since Mr. Coates was only prosecuted for the lesser s. 320.16(1) offence, this is the same maximum punishment that he now faces. While he could have been successfully prosecuted for the s. 320.16(2) offence, which carries a higher maximum sentence of 14 years imprisonment, the Crown did not do so.

[27] In this context, I find that the prior sentencing jurisprudence for the s. 252(1.2) offence remains highly relevant when determining the appropriate range of sentence for Mr. Coates. Because of the prosecution’s charging decision in this case, Mr. Coates now faces the same maximum punishment that he would have faced under the previous legislative scheme, if he had been charged with the aggravated form of fail to stop under s. 252(1.2).

3. The range of sentences for the s. 252(1.2) offence

[28] Although the previous s. 252(1.2) offence of failing to stop a motor vehicle after an accident, knowing that someone had suffered bodily harm, or being reckless about this, carried a statutory maximum sentence of 10 years imprisonment, the sentences actually imposed for this offence tended to be much shorter.

[29] Writing for the Saskatchewan Court of Appeal in R. v. Kang, 2015 SKCA 98, Whitmore J.A. reviewed sentencing decisions from across Canada for the s. 252(1.2) offence, and identified a range of between one and eighteen months imprisonment.[^1] However, in most of these cases the offenders had been convicted of multiple additional offences, and were being sentenced for the s. 252(1.2) offence as part of a longer global sentence.

[30] In R. v. Gill, 2010 BCCA 388, at para. 42, the British Columbia Court of Appeal observed that sentencing precedents from British Columbia and Alberta “where there was a conviction for leaving the scene of an accident, but not for dangerous driving … demonstrate a range of custodial sentences from 3 to 12 months”. However, the Court of Appeal also identified some cases where 18 month sentences had been upheld on appeal, and ultimately upheld the 18 month sentence that had been imposed at trial in Gill.

[31] In Kang, the accused was found guilty of the s. 252(1.2) fail to stop offence after an accident that had caused bodily harm to passengers in his own vehicle, one of whom later died from his injuries. He was also convicted of impaired driving causing death and refusing to provide a breath sample. The Saskatchewan Court of Appeal increased the accused’s global sentence on a Crown appeal from 30 months to 4½ years imprisonment. As part of this increase, the Court of Appeal increased the sentence for the s. 252(1.2) offence from 3 months to one year, consecutive to the accused’s other sentences.

[32] The Crown has not provided me with any cases where a sentence as long as the three year sentence the Crown now seeks for Mr. Coates – or, indeed, any penitentiary-length sentence – has ever been imposed for a factually comparable fail to stop offence, under either the old or the new legislation. Indeed, the Crown did not provide me with any sentencing authorities that directly address either the s. 320.16(1) offence, or any of the predecessor offences under s. 252 of the Code.

[33] Instead, most of the cases Mr. Giordano gave me were in support of his argument that Mr. Coates’s status as an off-duty police officer is a significant aggravating factor. However, nearly all of these cases did not involve driving offences.

[34] The sole exception is the British Columbia Supreme Court’s decision in R. v. Robinson, 2012 BCSC 1134, where an off-duty officer was found guilty of attempting to obstruct justice after he left the scene of a fatal collision with a motorcyclist, and then drank alcohol before returning to the accident scene, in what was found to have been a deliberate attempt by him to conceal his blood alcohol level at the time of the accident. He received a twelve-month conditional sentence.

[35] For the defence, Mr. Lindsay provided me with nine sentencing decisions, six from Ontario and three from other provinces, in which sentences ranging from a conditional discharge to a conditional sentence of two years less a day were imposed for different variations of the previous s. 252 fail to stop offence. I will return to these cases later in my reasons. For now, I will simply note that none of them involved particularly closely comparable facts.

[36] The Crown submits further that:

[A]s a matter of policy, sentences for a failure to stop under s. 320.16 should be commensurate with the type of sentences that would appropriately result from the offences that would otherwise flow from the behaviour that the flight sought to escape. To do otherwise would incentivize flight from certain activities in order to evade responsibility.

[37] There is some force to this policy argument, but it also has a number of conceptual and practical flaws.

[38] First, the offence of failing to stop a conveyance after an accident is a separate delict from any offences that may have been committed by the operator of the conveyance before the accident. An offence under s. 320.16 can be committed even when the offender bears no criminal responsibility for causing the accident itself.

[39] Accordingly, tying sentencing ranges for the s. 320.16 offence to the range of sentences for the operation offences that only some offenders might have committed prior to the accident would be inconsistent with the fundamental principle of sentencing in s. 718.1 of the Code, which requires sentences to be “proportionate to the gravity of the offence”.

[40] Defendants who fail to stop their conveyances after an accident are commonly also charged with offences arising out of the accident itself, as was Mr. Coates. If these defendants are convicted of these latter offences, they can be punished for them directly. If they are acquitted of these latter offences, as Mr. Coates was, it would be wrong in principle to sentence them for the fail to stop offence as a proxy for the sentences that they would have received if they had been found guilty of the other offences on which they were acquitted.

[41] Put simply, an offender who, like Mr. Coates, has been found not guilty of any criminal responsibility for the accident itself, cannot be sentenced with the objective of punishing him for causing the accident.

[42] Second, s. 320.16 no longer requires the Crown to prove that the accused had the subjective “intent to escape civil or criminal liability”. Accordingly, it can no longer be assumed that all persons charged with failing to stop after an accident are engaged in “flight … in order to evade responsibility” for the accident itself.

[43] Finally, this policy argument does not seem to have been adopted in the prior sentencing jurisprudence. Although the previous s. 252 fail to stop offences did require proof that the accused was trying to “escape civil or criminal liability”, the usual range of sentences imposed for these offences after 1999, when the maximum punishment in cases involving bodily harm was increased from two years to ten years, seems to have been between one and eighteen months: see R. v. Kang; R. v. Gill. In contrast, the sentencing ranges for the offences of impaired or dangerous driving causing death or bodily harm were significantly higher: see, e.g., R. v. Kummer, 2011 ONCA 39; R. v. Puyenbroek, 2007 ONCA 824.

C. The circumstances of the offence

1. Findings of fact in my trial judgment

[44] I have already reviewed the factual circumstances of the accident, and Mr. Coates’s conduct in failing to stop after the collision, in my earlier judgment, which I released on November 3, 2022 and which is reported at 2022 ONSC 6218.

[45] In summary, I found Mr. Coates not guilty on charges of: impaired operation of a conveyance causing bodily harm (Count 1); having a blood alcohol concentration of over 80 mg/100 ml within two hours of operating a conveyance (Count 2); and dangerous operation of a conveyance causing bodily harm (Count 3).

[46] The Crown acknowledged at the start of trial that in view of my Charter ruling excluding the evidence of Mr. Coates’s breath test readings after the accident (reported at 2022 ONSC 3262), it would be unable to prove the “over 80” charge in Count 2.

[47] On Count 1, the impaired operation causing bodily harm charge, the evidence at trial concerning Mr. Coates’s drinking before the accident was that he had consumed one or two drinks with his softball teammates during the afternoon, and that he was not showing any signs of impairment when he left the park that evening. Of the witnesses who saw or interacted with Mr. Coates at the roadside after the accident, only one – PC Pavol Zec – purported to see him exhibiting any signs of impairment. As I explained in my previous reasons, I did not find PC Zec to be a reliable witness, and I concluded that the evidence as a whole fell short of establishing beyond a reasonable doubt that Mr. Coates was impaired by alcohol at the time of the accident.

[48] On Count 3, the dangerous driving causing bodily harm count, I found as fact that the collision occurred after Mr. Coates’s vehicle crossed the centre line and collided with Mr. Sweeney’s motorcycle, which had been travelling in its proper lane. However, I was not satisfied beyond a reasonable doubt that the evidence established that Mr. Coates’s driving had “markedly departed” from the standard of care expected of a reasonable motorist.

[49] In particular, I found that I could not entirely reject the possibility that Mr. Coates’s SUV had crossed the centre line because of a sudden tire blowout or mechanical failure. Indeed, it was clear that the front left tire of Mr. Coates’s SUV had blown out and rapidly deflated. The left front lower control arm of its front suspension was also broken. While this damage was very probably caused by the collision, I could not entirely rule out the possibility that either the tire blowout or the breaking of the control arm had occurred before the accident, causing Mr. Coates’s SUV to cross the centre line. Indeed, this possibility was supported to some extent by Mr. Sweeney’s own evidence, in which he described Mr. Coates’s SUV as travelling in its own lane and then suddenly swerving into Mr. Sweeney’s path.

[50] At the conclusion of the Crown’s case, Mr. Coates applied to have the fail to stop charge in Count 4 severed from the other counts. I granted his application and permitted him to present evidence only in relation to the fail to stop count.

[51] During his testimony Mr. Coates gave his version of the events that led up to the accident. He claimed that the accident happened because Mr. Sweeney crossed the centre line into Mr. Coates’s lane, causing him to be blinded by the motorcycle’s high beam headlights and to then swerve his SUV to the left, into the oncoming lane, which caused him to collide with Mr. Sweeney when he also pulled back into his own lane.

[52] I substantially rejected Mr. Coates’s explanation for how the accident had occurred, and found as fact that Mr. Sweeney’s motorcycle had never crossed the centre line into Mr. Coates’s lane.

[53] It is undisputed that after the accident Mr. Coates then continued driving east for 3.88 kilometres before pulling his badly-damaged SUV over onto the eastbound shoulder.

[54] I accepted Mr. Coates’s evidence that he suffered a concussion during the collision, which was confirmed to some extent by independent evidence. However, I did not accept Mr. Coates’s further claim that the concussion rendered him unaware of the passage of time after the accident, and I entirely rejected his testimony that he thought that he had only driven a few hundred metres before stopping. I also rejected Mr. Coates’s evidence that after he stopped he walked back to look for Mr. Sweeney, believing that he was still west of York-Durham Line and only a short distance away from the accident scene. As I explained at para. 372 of my previous judgment:

I am satisfied that the conditions for criminal liability under s. 320.16(1) have all been established. Mr. Coates acknowledges that he knew that he had just collided with a motorcycle, which is something that would have been completely obvious to him. Instead of stopping and rendering assistance to the motorcyclist, he continued driving for another 3½ minutes, during which time he travelled 3.88 kilometres further down the road. I am satisfied beyond a reasonable doubt that his decision to keep driving was volitional and intentional. While I think it is likely that Mr. Coates did sustain a concussion during the collision, and accept that this may have contributed to his poor decision-making and bad choices, I am satisfied beyond a reasonable doubt that he was not rendered so confused that he was left unaware of what he was doing. I am satisfied that his actions after the accident were both volitional and intentional.

2. Mr. Coates is only being sentenced for failing to stop after the accident

a) Mr. Coates is not being punished for causing the accident

[55] It is important to note at the outset that Mr. Coates is being sentenced for his conduct in failing to stop and render assistance to Mr. Sweeney after the collision. He is not being sentenced for causing the accident in the first place. Indeed, I acquitted him on the charges that he faced arising out of the accident itself.

[56] The Crown argues that even though I acquitted Mr. Coates on the impaired and dangerous operation of a conveyance charges, I should treat Mr. Coates’s consumption of alcohol earlier that afternoon and his manner of driving before the accident as aggravating factors in relation to the fail to stop count. In his written submissions, Mr. Giordano argued:

While the offence can be committed in circumstances where the driver commits no driving errors and causes no bodily harm whatsoever, this offender, who is an experienced peace officer who was fully aware of his legal obligations and has an elevated duty of care to the public, chose to drink, speed, drove dangerously, cause a serious collision that resulted in serious life altering harm and then fled the scene while making calls to several persons but uttered not a word to assist the person he left gravely injured in a field. [Emphasis added.]

[57] I do not accept this argument. The Crown cannot use Mr. Coates’s conviction on the fail to stop charge as a means of circumventing his prior acquittal on the charge that directly alleged that he “drove dangerously” and “cause[d] a serious collision”. To the contrary, the doctrine of issue estoppel in criminal cases bars the Crown from relitigating any “issues that were either necessarily resolved in favour of the accused as part of the acquittal, or on which findings were made (even if on the basis of reasonable doubt)”: R. v. Mahalingan, 2008 SCC 63, [2008] 3 SCR 316, at para. 33. See also Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810.

[58] In this case, I acquitted Mr. Coates on Counts 1 and 3 because I found that the evidence I had ruled admissible on these counts did not prove beyond a reasonable doubt either that Mr. Coates was impaired by alcohol at the time of the accident, or that his driving at the time of the accident markedly departed from the standard of care expected of a reasonable driver. I have already summarized my factual findings, which are discussed at length in my previous judgment.

[59] In my view, the Crown is now estopped from continuing to assert that Mr. Coates “drove dangerously” and “cause[d] a serious collision that resulted in serious life altering harm”. Both of these factual issues have now been resolved in Mr. Coates’s favour, albeit “on the basis of reasonable doubt”: Mahalingan, at para. 33.

[60] During oral argument, Mr. Giordano suggested that I should reconsider my previous factual findings in view of the evidence Mr. Coates gave about how the accident occurred when he testified on the fail to stop charge, after I granted his motion for severance of this count.

[61] In my view, the doctrine of issue estoppel bars me from taking this approach. The Crown cannot relitigate an issue that has already been decided against it in other proceedings merely because it now has different and arguably better evidence.

[62] Indeed, I granted severance in order to give effect to Mr. Coates’s constitutional right to choose to testify in his own defence on the fail to stop charge, without running the risk that he would incriminate himself on the other charges he faced. The Crown’s proposed approach would undermine Mr. Coates’s Charter-protected right not to be compelled as a witness against himself.

[63] Even if the law did not preclude me from taking this approach, I would not adopt it in any event. I rejected Mr. Coates’s testimony about how the accident happened as entirely unreliable. I am not prepared to now selectively accept those parts of his account that might help the Crown.

[64] I am also not persuaded that I can or should properly treat the evidence of Mr. Coates’s speeding and use of his phone in the minutes leading up to the accident as aggravating factors on the fail to stop charge.

[65] On the issue of Mr. Coates’s speeding, the evidence at trial showed that before his vehicle entered the S-curve where the accident took place, it had reached speeds as high as 122 km/h. However, it then slowed when it reached the curve, and at the time of the accident was travelling only at approximately 100 km/h. This was still faster than the 70 km/h speed limit, but not dramatically so; indeed, the evidence showed that Mr. Sweeney’s motorcycle may well have been travelling at a comparable speed.

[66] I concluded in my previous judgment that driving 100 km/h in a 70 km/h zone did not “‘markedly depart’ from the standard of care observed by most Ontario drivers” (at para. 247). The Crown is estopped from relitigating this issue now.

[67] However, I accept that the doctrine of issue estoppel does not apply to the evidence of Mr. Coates’s speeding before he entered the S-curve, since in my previous judgment I accepted that he had been speeding. I also made no express or implied findings, one way or the other, about whether his overall pattern of driving before the accident had been dangerous.

[68] The evidence concerning Mr. Coates’s phone calls prior to the accident stands on a different footing. This issue was properly raised by the prosecution at trial. However, in my earlier judgment I rejected the Crown’s argument that Mr. Coates’s use of his cell phone constituted a “marked departure” from the standard of care expected of a reasonable motorist, on two different bases. First, I found as fact that Mr. Coates’s use of his phone did not contribute to the accident, because he was no longer using the phone when the accident took place. Second, I found that it could reasonably be inferred from the evidence as a whole that he had been using his phone with a handsfree Bluetooth connection to his car audio system, which is permitted by s. 78.1(3) of the Highway Traffic Act, R.S.O. 1990 c.H.8. I was not satisfied that a motorist who does something that the HTA expressly allows can be said to “markedly depart” from the standard of care of expected of a reasonable and prudent motorist.

[69] I recognize that I did not expressly decide in my earlier judgment whether the combination of speeding 50 km/h over the limit and using a phone with a handsfree connection might constitute a marked departure from the standard of care. However, even accepting that the doctrine of issue estoppel does not apply to this question, I am still not persuaded that I can properly treat Mr. Coates’s manner of driving before the accident as an aggravating factor when I sentence him for not stopping after the accident.

[70] As Moldaver J. noted in his majority reasons in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 35, “[a]s a general rule, courts cannot sentence an offender in respect of a crime for which he or she has not been convicted”. Mr. Coates is now being sentenced for his criminally culpable actions after the accident, not for his manner of driving before the accident.

[71] The “general rule” in Suter is not absolute, and is subject to a statutory exception in s. 725(1)(c), which states that a sentencing court “may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” However, I am not satisfied that it would be appropriate to invoke this subsection here to punish Mr. Coates for speeding and/or using his cell phone before the accident.

[72] Even assuming that Mr. Coates’s speeding and cell phone use before the accident is sufficiently closely linked to his subsequent failure to stop to meet the statutory requirement that it “form part of the circumstances of the offence”, invoking s. 725(1)(c) is discretionary: see R. v. Larche, 2006 SCC 56, at para. 32.

[73] Mr. Coates’s trial was conducted on the basis that the only allegedly dangerous driving by him that was at issue was the driving that the Crown alleged had caused the accident, and had thus caused Mr. Sweeney’s injuries. The question of whether driving 122 km/h on a straight stretch of highway with a posted 70 km/h speed limit is a “marked departure” from the standard of care expected of a reasonable and prudent driver, either alone or in combination with using a cell phone in handsfree mode, was not raised or litigated. In these circumstances, I do not think it would be fair to punish Mr. Coates more severely for his post-accident failure to stop on the basis that his speeding and/or cell phone use before the accident was dangerous.

[74] In my view, the evidence of Mr. Coates’s actions before the accident is relevant in these sentencing proceedings only to the limited extent that it may shed some light on his possible motivations after the accident for not stopping, and instead continuing to drive away from the accident scene.

b) Mr. Coates is not being punished for causing Mr. Sweeney to lose his left leg

[75] Likewise, it needs to be emphasized that Mr. Coates is not being punished for causing Mr. Sweeney’s tragic loss of his left leg. The evidence at trial showed that Mr. Sweeney’s lower left leg needed to be amputated because of the devastating and irreparable injuries it sustained when it struck the side of Mr. Coates’s SUV in a high-speed collision. Mr. Coates’s failure to stop after the accident and summon help for Mr. Sweeney was reprehensible, but it was not what caused Mr. Sweeney to lose his leg.

[76] The Crown has filed a victim impact statement from Mr. Sweeney and a joint statement from his parents, which were read out in court. Both statements are largely directed at detailing the terrible physical, emotional and financial impact that the loss of Mr. Sweeney’s left leg has had on him and his family.

[77] Under s. 722(1) of the Criminal Code, a victim impact statement may describe the harm suffered by the victim “as the result of the commission of the offence”, as well as “the impact of the offence on the victim”. In this case, however, Mr. Coates has been found not guilty of the charges relating to the accident itself. He is being sentenced for not stopping after the accident, not for causing the accident, or for causing the loss of Mr. Sweeney’s leg.

[78] I do not fault Mr. Sweeney or his parents for writing victim impact statements that go beyond what the Criminal Code permits, since they cannot be expected to know these legal limits. Rather, it was “Crown counsel’s ultimate responsibility to ensure that the victim impact statement conforms with the legislation and the case law”: R. v. Beals, 2023 ONSC 555, at para. 76; R. v. McDonough, 2006 CanLII 18369, at para. 31. Regrettably, this did not happen here.

[79] Section 722(8) of the Criminal Code provides that when considering victim impact statements, “the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion”. Unfortunately, I am obliged to disregard much of the victim impact statements that were filed by the Crown in this case. The devastating impact of the accident on Mr. Sweeney and his family would have been highly relevant if Mr. Coates had been convicted of dangerous or impaired operation of a conveyance causing bodily harm. However, it is not relevant to my determination of a fit sentence for Mr. Coates for the separate delict of failing to stop after the accident, in view of his acquittals on these other charges.

[80] That said, I am satisfied that Mr. Coates’s failure to stop after the accident had a significant psychological impact on Mr. Sweeney, even though it did not cause or substantially worsen his physical injuries. Mr. Coates left Mr. Sweeney to lie alone in the ditch, badly injured and with the light fading. Mr. Sweeney managed to reach his phone and call 911, but then spent fifteen agonizing minutes on the phone with the dispatcher, not knowing if the police and paramedics would be able to find him in the growing dark. I have no doubt that Mr. Sweeney is still grappling with the mental repercussions of this traumatic experience, on top of the daily ongoing struggles he faces because of his lost limb.

3. Assessing the seriousness of the offence

[81] Assessing the seriousness of a criminal offence is not a straightforward task, since the gravity of an offence, and the degree of moral blameworthiness of the offender, can both be measured along multiple different axes.

[82] By some metrics, Mr. Coates’s failure to stop after the accident that injured Mr. Sweeney can be seen as very serious. By other measures, however, his level of moral culpability is less pronounced.

[83] One measure of moral fault in fail to stop cases is the extent to which the accused can be seen to have been deliberately trying to escape liability. In R. v. Hindes, 2000 ABCA 197, at para. 17, the Alberta Court of Appeal stated:

In our view, 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. On the other end of the scale are those cases where the accused reacted out of panic or an error in judgment. The sentences should be adjusted for the degree of culpability.

[84] Although I agree with this observation, I would add that this is not the only axis by which moral blameworthiness can be measured in these cases. For instance, moral fault can also be assessed by considering the extent to which the offender knew that his or her failure to stop would expose the accident victim to a risk of further harm, by delaying medical treatment. As in any sentencing situation, there are multiple other measures that must also be considered.

[85] In order to make meaningful comparisons with the sentencing precedents relied on by the parties, as well as those I have identified myself, I must try to combine all of these different measurements and determine where Mr. Coates’s overall level of culpability lies on the spectrum of criminal fault.

a) Mr. Coates’s status as a police officer

[86] The Crown argues that Mr. Coates’s status as “an experienced peace officer who was fully aware of his legal obligations and ha[d] an elevated duty of care to the public” is a significant aggravating factor that requires a denunciatory sentence.

[87] I agree that Mr. Coates’s status as an off-duty police officer is a relevant circumstance, and also agree that it is an aggravating factor, but only up to a point.

[88] Any violation of the law by a police officer who has sworn to “preserve the peace” and “prevent offences” can fairly be characterized as a breach of the public trust: R. v. Cook, 2010 ONSC 5016, at para. 34; R. v. Theriault, 2020 ONSC 6768, at paras. 45-47; Police Services Act, R.S.O. 1990, c.P.15, s. 42; Criminal Code, s. 718.2(a)(iii).

[89] However, as my colleague Di Luca J. noted in Theriault, at para. 47, “[a]n offence committed by an off-duty police officer in a manner wholly unrelated to the performance of an officer’s official duties may lessen the weight given to the inherent breach of the community’s trust”. In my view, it is a much graver breach of trust when a police officer commits an offence by exploiting his or her authority or special legal powers.

[90] Nearly all of the cases relied on by the Crown fall into this latter category:

i) In Cook and R. v. Dominelli, 2018 ONCJ 906, the accused officers stole drugs, or what they believed to be drugs, from crime scenes while they were on duty;

ii) R. v. Preston, 2008 ONCA 530, the accused officer “took part in a serious unprovoked assault on a civilian and then to cover up his involvement attempted to fabricate evidence that could have led to the conviction of an innocent man” (at para. 4). Likewise, in R. v. Feeney, 2008 ONCA 756, R. v. Cardinal, [2003] O.J. No. 5744, and R. v. Baxter, 2018 ONCJ 608, the accused officers were found guilty of assaulting prisoners in their custody;

iii) In R. v. Christiansen, 2019 ONCJ 753, the accused officer entered into a sexual relationship with a 15 year old girl who he met when she came to the police station and he was working at the front desk, and was found to have “used his position as a police officer to facilitate [the] relationship” (at para. 47);

iv) In R. v. Darnley, [2016] O.J. No. 5711, the accused officer was alleged to have committed breach of trust under s. 122 of the Criminal Code by releasing confidential police information to her fiancé. (I would note that although the Crown relied on the trial sentencing decision in Darnley, the defendant’s convictions were later overturned on appeal by the Ontario Court of Appeal, which entered an acquittal on one count and ordered a new trial on the other count: R. v. Darnley, 2020 ONCA 179);

v) In R. v. Schertzer, 2015 ONCA 259, the accused officers were all convicted of obstruction of justice, and some were also convicted of perjury, for engaging in a scheme to falsify their notes and/or give false evidence to conceal that they had conducted a warrantless search of a dwelling-house.

[91] The situation in the case at bar is different. Mr. Coates was not on duty at the time of the accident, and he did not exploit his special position or powers as a police officer to commit the offence of failing to stop. In my view, this places his offence at a significantly lower point on the spectrum of breaches of trust than the offences in most of the cases relied on by the Crown, although Mr. Coates’s offence can still be seen as serious when it is assessed on several other axes of measurement, as I will discuss later.

[92] The Crown relies on Hill J.’s comment in Cook, at para. 38, that “deterrence and denunciation drive the sentencing process in abuse of trust prosecutions”, as well as on Misener J.’s observation in Dominelli, at para. 77 that:

The Ontario Court of Appeal has clearly stated that, absent very exceptional circumstances, officers who commit breaches of trust in the course of their duties should receive lengthy sentences of imprisonment.

[93] In my view, these statements must be read in their proper context. Cook and Dominelli both involved thefts, or attempted thefts, of drugs by police officers while on duty, but at opposite ends of the spectrum for this particular type of offence. In Cook, the accused police officer took 15 kilograms of what he believed was cocaine, although it turned out to be an inert substance that unbeknownst to him had been substituted by investigators from a different police force. He received a penitentiary sentence of five years and eight months.

[94] In contrast, in Dominelli, the accused officer stole three chocolate bars containing cannabis during a raid of a marijuana dispensary, and then sampled one of them with his partner. Misener J. ultimately imposed a nine month conditional sentence, with house arrest for the first six months.

[95] Moreover, the Ontario Court of Appeal cases that Misener J. cited as standing for the proposition that “officers who commit breaches of trust in the course of their duties should receive lengthy sentences of imprisonment”, namely, Schertzer and R. v. Hansen, 2018 ONCA 46, both involved perjury by officers who had abused their search and seizure powers.

[96] In Schertzer, discussed above, the Court of Appeal substituted sentences of three years imprisonment for the 45 day conditional sentences imposed at trial, but then stayed these sentences.

[97] Hansen involved an even more egregious abuse of police power than Schertzer. The officer in Hansen had tried to frame an investigative target for a serious firearms offence by conspiring with a confidential informant to have the informant plant a gun in the target’s house. The officer then swore a false information to obtain a search warrant for the target’s house in order to “find” the gun that he had arranged to have hidden there.

[98] Mr. Coates, unlike the police officers in these cases, did not commit an offence “in the course of his duties”. To the extent that Mr. Coates’s conduct while off duty can properly be seen as a “breach of trust”, it was in my view a breach of a wholly different character than those committed in Schertzer, Hansen and Cook.

b) Mr. Coates’s failure to stop endangered Mr. Sweeney’s life

[99] In my view, one of the most significant aggravating factors in this case is that Mr. Coates’s failure to stop after the accident endangered Mr. Sweeney’s life. It was only by chance that this risk did not materialize: Mr. Sweeney remained conscious, and somehow managed to get to his phone and call 911 to summon help for himself. If he had not been able to do this, or if his phone had been broken as a result of the accident, he might very easily have died in the ditch. The light was fading as the sun set, and if Mr. Sweeney had not called 911 it could very well have been many hours before anyone found him lying at the side of the road.

[100] By this measure, Mr. Coates’s offence was worse than the offences in most of the fail to stop cases presented by the defence, where for various reasons the accused’s failure to stop did not materially increase the danger faced by any of the victims. In some cases this was because nobody was seriously hurt in the accident,[^2] while in other cases this was because there were other bystanders nearby who could summon help.[^3] In still other cases, it was clear on the evidence that getting help faster would not have made any difference to the victims, although in some of these cases the defendants’ level of moral culpability on this metric can still be seen as elevated, because they did not know that their failure to stop was not actually endangering the victim’s safety.[^4]

c) Mr. Coates’s level of awareness after the accident

[101] In my previous judgment, I found that I was “satisfied on all the evidence that Mr. Coates probably did suffer a concussion as a result of the collision” (at para. 335). However, I rejected Mr. Coates’s evidence that his impaired mental state caused him not to realize that he had driven nearly 4 kilometres away from the accident scene, and that he had mistakenly thought that he was pulling over only a short distance down the road.

[102] I also did not accept Mr. Coates’s medical expert’s opinion that Mr. Coates’s actions after the accident had not been volitional. Indeed, Mr. Coates did not himself seek to rely on the defence of automatism.

[103] As I stated at para. 372 of my earlier judgment:

While I think it is likely that Mr. Coates did sustain a concussion during the collision, and accept that this may have contributed to his poor decision-making and bad choices, I am satisfied beyond a reasonable doubt that he was not rendered so confused that he was left unaware of what he was doing. I am satisfied that his actions after the accident were both volitional and intentional.

[104] Mr. Coates acknowledged in his trial testimony that he knew right away that he had hit a motorcycle. Given the nature of the collision, I find that he must also have realized that it was overwhelmingly likely that the motorcycle rider would have been badly hurt. He nevertheless continued driving away, and I have previously found that his actions were both volitional and intentional (see paras. 339-72 of my previous judgment).

d) The degree to which Mr. Coates’s actions after the accident were planned and purposive

[105] Mr. Coates drove east on Highway 7 for 3.88 kilometres before pulling over to the side of the road. He denied that he was forced to pull over because his SUV had become undriveable, and I am not satisfied that this has been proved beyond a reasonable doubt. The left front tire was blown out and completely flat, but the tire marks on the roadway showed that it was already in this state very soon after the collision (see paras. 229-30 of my previous judgment). The SUV was also leaking transmission fluid, but there is no evidence that the transmission had seized up. Accordingly, I am not satisfied beyond a reasonable doubt that Mr. Coates only stopped driving east because he had no other choice.

[106] After Mr. Coates pulled over at the side of Highway 7, he made a series of phone calls to his wife, who was travelling in the United States, and to his parents. The Crown places great emphasis on the evidence of Stephen Middleton, an off-duty tow truck driver who stopped and spoke with Mr. Coates at the side of the road. According to Mr. Middleton, he overheard Mr. Coates telling someone on the phone “to hurry up and to come quick”. The Crown contends that Mr. Coates must have been trying to get his parents to come and take him further away from the accident scene, and notes that two people who identified themselves as Mr. Coates’s parents came to the collision scene later that night, after Mr. Coates had been arrested, and spoke to the sergeant who was blocking eastbound traffic on Highway 7.

[107] For a number of reasons, I am not persuaded that Mr. Middleton’s memory is reliable. He told two police officers that night that he was absolutely certain that Mr. Coates was drunk, but at the preliminary inquiry he resiled almost entirely from this claim. During his trial testimony, he purported for the first time to now have a detailed memory of seeing a black Mercedes SUV driving by Mr. Coates’s SUV several times, and then pulling over at the other side of the road just as the police arrived. The police in-car video shows a silver vehicle that may or may not be Mercedes SUV pulled over in that location. At a minimum, Mr. Middleton’s positive and confidently expressed memory before he saw the video that this vehicle was black seems to have been mistaken.

[108] I am ultimately not satisfied beyond a reasonable doubt that Mr. Middleton’s memory of what he thinks he overheard Mr. Coates saying on the phone is any more reliable than his other memories that have either changed over time or are demonstrably wrong.

[109] It was also open to the Crown to call Mr. Coates’s parents as witnesses to support its theory that their son asked them to come pick him up from the roadside. In my previous judgment, I indicated that I was not prepared to speculate about what Mr. Coates’s parents might have said if they had testified on issues where their evidence might possibly have supported the defence (see para. 368). I am equally unprepared to speculate about whether their evidence might have supported the Crown.

[110] Ultimately, I am not satisfied beyond a reasonable doubt by the evidence as a whole that Mr. Coates ever formulated any real plan to try to get away from the area of the accident, let alone any plan that had any actual prospect of success. As Mr. Lindsay points out, if Mr. Coates had been trying to avoid being found, there were a number of side roads and driveways he drove past that he could easily have turned onto, which at the very least would have offered him a better chance at concealment than merely pulling over at the side of Highway 7. Turning onto a side road might very well not have proved effective as a means of escape, since by this time Mr. Coates’s SUV was leaving a trail of debris and leaking transmission fluid. However, I think it is of some significance that Mr. Coates did not even try to do this, nor did he attempt to flee on foot over the open fields after he eventually did pull over to the side of the road. Rather, he waited by his vehicle making phone calls until the police arrived.

[111] I agree with Mr. Lindsay that this distinguishes Mr. Coates’s situation from that found in a number of the cases presented by the parties, where the defendants were found to have made concerted and deliberate efforts to conceal their involvement in the accidents at issue, which sometimes extended over several days.

[112] For instance, in Forrestall, at para. 21, the trial judge treated it as an aggravating factor that:

[The defendant’s] criminal conduct was not solely a spur-of-the-moment panicked decision but was followed by an extended downward spiral of lies and misinformation transmitted to her mother, her employer, her insurance company and – most egregiously – to police.

[113] Similarly, in Robinson, relied on by the Crown, the accused off-duty police officer had left the accident scene and had several drinks in what the trial judge found was a deliberate attempt to conceal his alcohol levels after the accident. The trial judge commented at para. 21:

While the sudden and serious nature of the accident while Robinson’s children were in the car might explain Robinson’s reaction to some extent and lower his moral culpability, his conduct was nonetheless deliberate and calculated. He used his knowledge learned as a police officer to mislead investigators: he made a choice.

However, she also noted at para. 26 that it was a mitigating factor that “[h]is crime was relatively spontaneous and was said by his psychologist to be an impulsive fear reaction to a very serious collision.”

[114] In the passage I quoted earlier from R. v. Hindes, at para. 17, the Alberta Court of Appeal identified a “continuum” of fail to stop cases:

… where, at one end, the accused does everything in his or her power, through deception, calculation or whatever means, to avoid liability. On the other end of the scale are those cases where the accused reacted out of panic or an error in judgment. The sentences should be adjusted for the degree of culpability.

[115] On the evidence as a whole, I would situate Mr. Coates’s level of fault at the lower end of this particular measure of moral blameworthiness.

[116] However, as I have already mentioned, this is not the only available measure of moral fault in these types of cases. I also agree with Mr. Giordano that Mr. Coates’s failure to take any steps to get help for Mr. Sweeney is a significant aggravating factor. While I accept that Mr. Coates probably suffered a concussion in the court and that he was somewhat confused, I am also satisfied that he knew that he had just hit a motorcyclist, and that he also knew that he had done so after crossing the centre line into oncoming traffic.

[117] I find that Mr. Coates panicked and continued driving rather than immediately pulling over, as he was legally obliged to do. I have previously rejected his evidence that he thought he had pulled over immediately and did not realize that he had actually driven nearly four kilometres away from the accident scene.

[118] I am also satisfied that after the accident Mr. Coates, at a minimum, gave no real thought to Mr. Sweeney’s situation and did nothing to try to help him, even though he retained sufficient presence of mind to check his own body for injuries, and to make phone calls to his wife and to his parents. I have already specifically rejected Mr. Coates’s testimony that he walked west in a futile attempt to look for the motorcyclist he had hit. This part of Mr. Coates’s account was tied up with his evidence, which I also rejected, that he mistakenly believed he had driven only a few hundred metres and had stopped west of York-Durham Line. As I explained at para. 365 of my previous judgment:

Mr. Coates’s evidence about how he began walking “back to the S-bend” to look for the motorcyclist also makes little sense. There was no S-bend for him to walk back to, and it is hard to see how he could have failed to realize this, even if he was in a confused state. Moreover, if Mr. Coates really did form the intention of going to look for and help Mr. Sweeney, it is hard to understand why he did not also think to call 911. His status as a police officer makes this latter failure especially hard to accept.

[119] On the evidence as a whole, I find that Mr. Coates did nothing at all to try to get help for Mr. Sweeney. He either never turned his mind to Mr. Sweeney’s plight or, if he did, he made a conscious choice not to call 911 to get help for him.

[120] I am not satisfied beyond a reasonable doubt that Mr. Coates made a deliberate choice not to call 911 in order to conceal his own involvement in the accident. However, while the alternate scenario in which Mr. Coates simply gave no thought at all to the motorcyclist who he had just hit may be less egregious, it still displays a level of callousness on his part.

[121] That said, I am not satisfied on the evidence that Mr. Coates specifically knew that Mr. Sweeney was lying in the ditch at the side of the road, out of plain view of other passing motorists.

[122] Mr. Coates’s failure to consider Mr. Sweeney’s well-being is particularly concerning given his status as a police officer. Under the Police Services Act, Ontario police officers are assigned “the powers and duties ascribed to a constable at common law” (s. 42(3)), which include a general “duty to protect life”: R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 15. By not stopping after the accident and summoning help for Mr. Sweeney, or even summoning help for him after leaving the scene, Mr. Coates breached not just his statutory duty under s. 320.16 of the Criminal Code, but also his duties as a police officer.

[123] As I have already discussed, I agree with the Crown that Mr. Coates’s breach of these latter duties is an aggravating factor that can properly be characterized as a form of breach of trust, although as I have discussed, it is in my view a lesser breach of trust than those found in cases involving police officers who commit criminal offences by abusing their authority or their special police powers.

e) Statutory aggravating factors in s. 320.22

[124] I must also consider the factors set out in s. 320.22 of the Criminal Code, which Parliament has directed courts to “consider, in addition to any other aggravating circumstances”, when imposing sentences for offences under ss. 320.13 to 320.18.

[125] In my view, none of these factors is engaged in this case. Mr. Sweeney suffered significant and permanent bodily harm, but this did not result from the commission of the offence for which Mr. Coates is now being sentenced (s. 320.22(a)). Mr. Coates was not racing with another vehicle (s. 320.22(b)); he had no passengers under the age of 16 in his vehicle (s. 320.22(c)); he was driving his own personal vehicle while off duty and was not “being remunerated for operating the conveyance” (s. 320.22(d)); and his licence was not suspended, nor was he subject to any driving prohibition (s. 320.22(g)). There is also no admissible evidence of his blood alcohol concentration at the time of the offence, pursuant to my previous Charter ruling. Finally, while the SUV that Mr. Coates was driving was larger than a sedan, I am not satisfied that it qualifies as a “large motor vehicle” for the purposes of s. 320.22(f).

D. The circumstances of the offender

1. Mr. Coates’s life and work history

[126] Mr. Coates is now 45 years old. He has no criminal record. He has been a police officer in York Region since 2006, although he has been suspended with pay since the accident and his arrest in September 2019. His most recent performance review, from a few months before the accident, was uniformly positive.

[127] The defence has filed a collection of letters by his family members, relatives and friends, who describe him as a caring husband, stepfather and father, and son. Among other things, he has in recent years acted as caregiver for his parents, who are elderly and have significant health issues. A common thread running through these letters is that the writers all have difficulty accepting that the man they know would leave the scene of an accident as Mr. Coates did. They characterize his behaviour as out of character, and many put the blame on his head injury.

[128] I have already concluded in my previous judgment that Mr. Coates probably did suffer a concussion in the accident (at paras. 335-38). However, I did not accept either that his head injury caused him to enter into an automatistic state, or that it left him so confused that he did not realize he was driving away from the scene of the accident (see paras. 339-72), and accordingly found him criminally culpable for breaching his s. 320.16(1) Criminal Code duty to stop.

[129] However, I do accept that Mr. Coates’s head injury probably did play some role in his acting in a manner that those who know him view as out of character. As I commented in my previous judgment, “I think it is likely that Mr. Coates did sustain a concussion during the collision, and accept that this may have contributed to his poor decision-making and bad choices” (at para. 372). I also accept that this can be seen as reducing his level of moral fault to some extent, even if it does not absolve him of blame altogether. As Pardu J.A. noted in R. v. Ghadghoni, 2020 ONCA 24, at para. 45:

Cognitive impairment, where it affects behaviour resulting in criminal liability, “can attenuate the moral blameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence”: R. v. Manitowabi, 2014 ONCA 301, 318 O.A.C. 175, at para. 64.

2. The employment consequences of Mr. Coates’s conviction and sentence

[130] The probable consequences of Mr. Coates’s criminal conviction, and of any sentence I impose on him as a result, are also relevant factors for me to consider.

[131] The defence has filed an opinion letter from a lawyer, Peter Brauti, who has considerable experience in discipline cases under the Police Services Act. I accept his evidence, which the Crown did not challenge or contradict.

[132] In summary, Mr. Brauti explains that “[a] PSA prosecution of Mr. Coates is inevitable”, and that while there are a variety of different charges that could be brought against him, it does not particularly matter which service offences are pursued, because the range of penalties for these offences are the same.

[133] Mr. Brauti notes further that in view of my findings at trial, Mr. Coates “will have no practical choice but to enter a guilty plea in the PSA matter”, and that “[t]he only question that remains concerns the penalty that will be imposed.”

[134] Mr. Brauti explains that if I impose a custodial sentence on Mr. Coates, including a conditional sentence, he will as a matter of course lose his job as a police officer. On the other hand:

A sentence less than a custodial sentence may still lead to dismissal from employment based on the existence of aggravating facts, but it does allow for the opportunity to have a chance at staying employed with a significant demotion in rank. [Italics in original.]

3. The impact of incarceration on Mr. Coates

[135] A further factor for me to consider is that a sentence of incarceration would be harder for Mr. Coates than for most offenders, because of his status as a police officer. As Hill J. noted in R. v. Cook, at para. 43:

Because an inmate who is known to be, or discoverable as, a former police officer is at risk from general population prisoners, such an offender will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment.

[136] Put simply, any sentence of incarceration that I impose on Mr. Coates will result in him doing harder time than would be experienced by most offenders who serve a sentence of the same length.

E. Determining a fit sentence for Mr. Coates

[137] My task is a difficult one.

[138] On the one hand, Mr. Coates is being sentenced for a serious offence. As I have discussed, there are some aggravating factors that place it at the higher end of the spectrum of gravity when it is viewed along certain axes of measurement. His failure to stop after the accident put Mr. Sweeney’s life at serious risk. That this risk did not materialize was only because of Mr. Sweeney’s own efforts and tenacity, not because of anything that Mr. Coates did. He deserves no credit for Mr. Sweeney’s survival.

[139] Mr. Coates’s status as a police officer, and his breach of his duty as a police officer to protect life, are also in my view significant aggravating factors that can be characterized as forms of breach of trust. However, as I have already explained, I would situate the seriousness of the breach of trust in this case at a lower point on the spectrum than the breaches in most of the comparator cases relied on by the Crown, which involved police officers exploiting their authority and special powers to commit offences that ordinary members of the public would not have had the opportunity to commit.

[140] Mr. Coates’s apparent lack of concern for Mr. Sweeney’s well-being displays a level of callousness that is also aggravating, although this factor is offset to some extent by the evidence that Mr. Coates sustained a concussion in the accident that may have affected his decision-making and his actions, as well as by the extensive evidence presented by the defence of his previous good character.

[141] On the evidence as a whole, I am satisfied that specific deterrence is not a significant sentencing objective in this case. However, general deterrence and denunciation are both important sentencing goals.

[142] I must also take into account that Mr. Coates is a first offender who before September 2019 seems to have led an exemplary life. His rehabilitative prospects are excellent. There is also a very significant chance that he will be discharged from his job as a police officer as a result of his conviction, and on Mr. Brauti’s evidence, which I accept, this chance will increase to a virtual certainty if I impose any form of custodial sentence, including a conditional sentence. Losing his job will have serious consequences for his wife and children, who rely on him for support.

[143] In my view, the Crown’s request that I impose a three year penitentiary sentence on Mr. Coates is excessive, and is unsupported by the sentencing precedents that I have already discussed. The Crown has not pointed to any case under either the old or new legislation in which a conviction for fail to stop simpliciter, unaccompanied by any other convictions for offences relating to the accident itself, has attracted a penitentiary-length sentence, let alone a sentence of imprisonment as long as three years.

[144] As I have already discussed, I am satisfied that in the particular context of this case the sentencing range for the old s. 252(1.2) offence of failing to stop, knowing that someone has suffered bodily harm, or being reckless about this, remains instructive. This offence also carried a maximum penalty of ten years imprisonment. However, the sentences typically imposed for this offence ranged between a few months at the low end, to as high as eighteen months imprisonment at the upper end. A sentence of three years imprisonment, as proposed by the Crown, would be nearly twice as long as the sentences at the highest end of the established sentencing range.

[145] Indeed, the Crown’s submissions suggest that its request that Mr. Coates receive a penitentiary-length sentence is largely driven by the devastating impact the loss of his lower left leg has had Mr. Sweeney and his family. The Crown argues that “[t]he sentence imposed by the court should address the enormity of that loss in a meaningful way”.

[146] To reiterate what I have said several times already, Mr. Coates is not being punished either for causing the accident, or for causing Mr. Sweeney to lose his leg. The Crown cannot properly seek to have Mr. Coates punished for the offences on which he was tried and acquitted.

[147] I also do not accept the defence’s submission that a non-custodial sentence would be appropriate on the facts of this case. In R. v. Elaschuk, a Saskatchewan case that the defence provided as an example of a case where a non-custodial sentence was imposed for the previous s. 252(1.1) offence, the accused was involved in an accident in which the people in the other vehicle had suffered only minor injuries. He was a youthful first offender, and had left the accident scene but turned himself in to the police the next day, and then pleaded guilty. The Crown at trial had sought a fine, which was varied on appeal to a conditional discharge. However, the summary conviction appeal court emphasized (at para. 55) that:

This case is not in the category of those where injured pedestrians or passengers in other vehicles are left at the scene of an accident without calling for medical assistance.

[148] In contrast, Mr. Coates’s case falls squarely within this latter category. Mr. Coates left Mr. Sweeney lying badly injured in a ditch, and it is only because of good fortune and Mr. Sweeney’s own remarkable efforts that he did not die. In my view, in this context a custodial sentence is necessary to achieve the sentencing objectives of denunciation and general deterrence.

[149] However, this sentence does not necessarily have to be a sentence of incarceration that is served in a correctional institution. Once a court determines that an offender should receive a reformatory-length sentence, as opposed to a penitentiary-length sentence or a non-custodial disposition, the possibility of ordering that the sentence of imprisonment be served in the community becomes an option, unless this option has been specifically foreclosed by Parliament.

[150] A conditional sentence is available under s. 742.1 of the Criminal Code when the sentence imposed is less than two years, as long the offence for which the sentence is being imposed does not have a mandatory minimum sentence and is not otherwise excluded. When these preconditions are met, the availability of a conditional sentence in a particular case is determined by s. 742.1(a), which requires the court to be:

….satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[151] The s. 320.16(1) offence does not have a minimum term of imprisonment, and it is not one of the excluded offences listed in ss. 742.1(b) and (c). As I have already discussed, in the particular circumstances of Mr. Coates’s case I am satisfied that the appropriate range of sentence can properly be informed by the established sentencing range for the old s. 252(1.2) offence, under which lower to mid-level reformatory-length sentences were the norm, and higher level reformatory length sentences as long as 18 months imposed only in the most serious cases.

[152] The availability of a conditional sentence in this case thus hinges on the two factors set out in s. 742.1(a).

[153] I am satisfied that having Mr. Coates serve a sentence of imprisonment in the community would not endanger community safety. He has no prior criminal record, and no history of reoffending during his time on bail. I am entirely satisfied that the risk of his reoffending while serving a conditional sentence is extremely low, and that sentencing him to house arrest as an alternative to sending him to jail would not endanger community safety.

[154] The more difficult question is whether making a conditional sentence order in this case would be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2.

[155] The primary objectives of sentencing are set out in s. 718(a) through (f), which must be read in conjunction with the fundamental principle of sentencing in s. 718.1 that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[156] In my view, the purposes and principles of sentencing in this case can be adequately achieved with a conditional sentence. In particular, a conditional sentence can achieve the objectives of denunciation and deterrence in ss. 718(a) and (b). As Lamer C.J.C. explained in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61 , at para. 102:

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

[157] Regarding deterrence, Lamer C.J.C. recognized that even though incarceration “is ordinarily a harsher sanction, … a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”: Proulx, supra, at para. 107. While general deterrence is an important sentencing objective in this case, I do not think there is any pressing need to deter Mr. Coates personally, nor do I consider it necessary to “separate [him] from society” to protect the public (s. 718(c)).

[158] Finally, as Lamer C.J.C. observed in Proulx, supra, at para. 109, “a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender” (ss. 718(d), (e) and (f)).

[159] In my view, none of the other sentencing principles in ss. 718 to 718.2 preclude a conditional sentence in this case. None of the aggravating features identified in ss. 718.01 to 718.04 are present. As I have already discussed, while Mr. Coates’s status as a peace officer arguably can be seen as making his breach of his s. 320.16(1) duty to stop a form of breach of trust, it is at the low end of the spectrum of such breaches, since he did not abuse his authority as a police officer, or use his special police powers to commit an offence.

[160] The deterrent effect of a conditional sentence in this case can also be enhanced by making the sentence significantly longer than what would have been a fit jail sentence for Mr. Coates. Any jail sentence imposed on Mr. Coates would have to be shortened to take into account that he would very likely have to serve it in protective custody, which would make it a significantly harsher form of punishment. I can also include a community service term as part of a conditional sentence order, which can be seen as having both a punitive and a rehabilitative aspect.

[161] In the circumstances of Mr. Coates’s case, I am satisfied that a conditional sentence order will adequately achieve the applicable sentencing objectives. While there are some aggravating factors, “[a] conditional sentence may be imposed even where there are aggravating circumstances”: Proulx, at para. 127.

[162] R. v. Robinson, one of the cases relied on by the Crown that I have already discussed, has some factual parallels, even though the offender in that case was being sentenced for a different offence, obstruction of justice, rather than for failing to stop after an accident. As noted above, Robinson also involved an off-duty police officer who had struck a motorcyclist, who in that case died from his injuries.

[163] Unlike Mr. Coates, the accused in Robinson stopped to check on the motorcyclist, and also knew when he left the scene that other bystanders had already called 911. Since the motorcyclist in Robinson was already dead, the accused’s subsequent actions in leaving the scene and drinking alcohol, in what the trial judge found was a deliberate attempt to conceal his blood alcohol level at the time of the accident, did not put the victim’s life at any further risk. On this measure, Mr. Coates’s failure to stop can be seen as significantly worse.

[164] On the other hand, on the different metric identified by the Alberta Court of Appeal in Hindes, at para. 17, the misconduct in Robinson can be seen as more serious. The accused in Robinson made a deliberate and calculated attempt to avoid criminal liability, and used “his knowledge learned as a police officer to mislead investigators”, even though “his crime was relatively spontaneous” (Robinson, at paras. 21, 26). I am not satisfied beyond a reasonable doubt that Mr. Coates’s decision to continue driving after the accident involved a similar level of deliberate forethought on his part.

[165] The accused in Robinson had already resigned from the RCMP at the time he was sentenced. As discussed above, if I sentence Mr. Coates to any term of imprisonment, even one served in the community, it is a virtual certainty he will also lose his job as a police officer.

[166] The two cases have some other distinguishing features. The accused officer in Robinson was Aboriginal, and the trial judge noted (at para. 17) that:

Imprisonment should be a last resort, especially in the case of aboriginal offenders, and all other reasonable, less restrictive sanctions should be considered (ss. 718.2(d)-(e) Criminal Code). Restorative goals play a major role in the sentencing of aboriginal offenders (R. v. Ipeelee, 2012 SCC 13).

[167] Since Mr. Coates is not Aboriginal, he cannot rely on the direction in s. 718.2(e) that the principle of restraint codified in that subsection be applied “with particular attention to the circumstances of Aboriginal offenders.” However, he can still rely on the principle of restraint. As Lamer C.J.C. observed in R. v. R.N.S., 2000 SCC 7, [2000] 1 SCR 149, at para. 21:

In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence should generally be imposed. This follows from s. 718.2(e) of the Criminal Code, which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[168] Moreover, it is a relevant circumstance when applying the principle of restraint that Mr. Coates, whose father is black, is part of a group that is over-represented in the prison population, and that continues to suffer the effects of racism: R. v. Morris, 2021 ONCA 680, at para. 123.

[169] The trial judge in Robinson also noted that the offender in that case “[did] not enjoy wide community or family support”, and had provided “no letters of support from the community”, although he did have supporting letters from some police colleagues that supported his glowing performance assessments. In contrast, Mr. Coates has similarly positive work performance reviews, but also has the strong support of his family, and has presented numerous letters of support from the community.

[170] It is also a relevant consideration that Mr. Coates now cares for his elderly parents, who both live with him and his family, and who both have serious health issues. Incarcerating Mr. Coates, even for a relatively brief period, would impose considerable hardship on them.

[171] Considering all of these factors, I find that Mr. Coates, like the offender in Robinson, meets the criteria for a conditional sentence. I also find that the overall gravity of his offence is somewhat more serious than the offence in Robinson, although the individual component parts that affect the seriousness of the offences are different. Mr. Coates put Mr. Sweeney’s life at risk in a way that the accused in Robinson did not, even though the offence in Robinson can be seen as more serious when viewed on some other axes of measurement.

[172] I conclude that a fit sentence for Mr. Coates would be a conditional sentence of 18 months. I will not attempt to quantify what would have been a fit sentence of imprisonment for him if I were not ordering that it be served in the community, but will simply note that it would have been significantly shorter.

[173] I would also note that the facts of Gill, where the British Columbia Court of Appeal upheld the 18 month jail sentence that was imposed at trial, were in some respects worse than in the case at bar.

[174] The offender in Gill left the accident victim unconscious at the scene without calling 911. Although he knew before he left the scene that the police and an ambulance had already arrived, the trial judge found that he would have left “regardless of whether help had arrived or not” (at para. 28). On this measure, Mr. Coates’s conduct was arguably worse, since he left the scene not knowing whether Mr. Sweeney would be found and receive medical assistance.

[175] However, the offender in Gill then became involved in a scheme to falsely report that his truck had been stolen, which only fell apart several months later when one of his passengers went to the police. Mr. Coates did not engage in any similarly deliberate or protracted efforts to conceal his involvement in the accident. On this measure, the moral blameworthiness of the offender in Gill was substantially worse.

[176] The trial judge in Gill also found that specific deterrence was an important sentencing objective in that case. I am not persuaded that there is any pressing need to specifically deter Mr. Coates from future similar misconduct.

[177] On the whole, I think that a fit sentence of incarceration for Mr. Coates would have been considerably shorter than the 18 month term of imprisonment that was upheld in Gill. While Mr. Coates’s status as a police officer is an aggravating factor, if I were sentencing him to a term of imprisonment in a correctional facility, this factor would be substantially offset by the reality that he would very likely have to serve his sentence in protective custody, which would make the sentence especially harsh for him.

[178] However, under Proulx “the duration of the conditional sentence [can be] extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.”

[179] I am accordingly sentencing Mr. Coates to an effective term of imprisonment of eighteen months, to be served in the community pursuant to s. 742.1 of the Criminal Code. This sentence will be reduced by three days going forward to credit Mr. Coates on a 1.5 for one basis for the parts of two days he spent in pre-sentence custody before being released on bail: see R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

IV. Disposition

A. The conditional sentence

[180] Mr. Coates will serve the first nine months of his conditional sentence order under house arrest, with limited exceptions, as I will outline. These will include exceptions to permit him to attend work and to perform community service, as well as exceptions for various other purposes, and as permitted by his conditional sentence supervisor.

[181] As I understand it, Mr. Coates is presently still employed by the York Regional Police, but has been suspended with pay. The evidence at trial indicated that to maintain his employment standing and continue being paid, he must periodically report and sign in. To be clear, my intention is to permit Mr. Coates to continue to do whatever is required for him maintain his employment with the YRP during the house arrest portion of his sentence, until such time as he resigns or is discharged from his position with the force.

[182] The conditional sentence will include the mandatory conditions required by s. 742.3(1). It will also include the following additional conditions under s. 742.3(2):

i) Mr. Coates will cooperate with his supervisor, sign any releases necessary to permit the supervisor to monitor his compliance, and provide proof of compliance with any condition of this order to his supervisor on request.

ii) House arrest: for the first nine months of his conditional sentence Mr. Coates is to remain in his residence at all times except:

(1) for medical or other emergencies for himself, his wife and children, or his parents;

(2) for going directly to and from or being at employment (including signing in as required with the York Regional Police); court or tribunal attendances; religious services or funeral services; legal or medical or dental appointments for himself, his children, his parents or his parents-in-law; performing community service hours; and to vacate his house for the purpose of real estate showings. Mr. Coates will confirm his schedule in advance with his supervisor setting out the times for these activities;

(3) with the prior written approval of his supervisor, which he must carry with him during these times;

(4) for three hours on one occasion per week, on a date approved of by his supervisor, for acquiring the necessities of life;

(5) for carrying out any legal obligations regarding compliance with this Order.

iii) During his home confinement, Mr. Coates must present himself at his doorway upon the request of his supervisor or a peace officer, for the purpose of verifying his compliance with his home confinement condition.

iv) Mr. Coates is not to buy, possess or consume any alcohol or drug or substance prohibited by the Controlled Drugs and Substances Act unless with a valid medical prescription.

v) Mr. Coates is to attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. He will sign any release of information forms as will enable his supervisor to monitor his attendance and completion of any such programs.

vi) Mr. Coates will perform 100 hours of community service work on a rate and schedule to be directed by the supervisor, but which must be completed within 18 months of the start date of this order.

vii) Mr. Coates is not to contact or communicate, directly or indirectly, by physical, electronic, or other means with Stewart Sweeney or his parents, except through legal counsel.

viii) Mr. Coates shall notify his supervisor of any change of employment, and provide proof of any new employment as required by his supervisor.

B. Ancillary orders

[183] The Crown also requested that I make a number of ancillary orders.

[184] First, the Crown seeks a driving prohibition order under s. 320.24 of five years, in addition to any period of imprisonment. The defence opposes this order, noting that Mr. Coates will already be subject to an automatic one year driving prohibition under the HTA, and arguing that no additional prohibition is justified in view of Mr. Coates’s acquittals on the charges relating to the accident itself.

[185] Prohibition orders under s. 320.24(4) may be made when an offender is found guilty of a listed offence, including an offence under s. 320.16. The order may only be made in relation to “the type of conveyance in question” in the charge, which in this case means a motor vehicle. Under ss. 320.24(5)(b) and (5.1), a driving prohibition “takes effect on the day that is made” and must be of a duration “not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment”.

[186] The case law indicates that prohibition orders under s. 320.24 may be imposed as an additional form of punishment, not merely to prevent future dangerous conduct by the offender. A driving prohibition may be imposed for the s. 320.16(1) offence of failing to stop after an accident, even when “there is no suggestion that [the offender] was at fault” for the accident itself: R. v. Reid, 2022 ONSC 3237, at para. 7. In Reid, the accused struck and killed a man who ran across Highway 401 in the early morning hours, and failed to stop. Goldstein J. noted that “Mr. Reid, of course, was not responsible for the accident”, but nevertheless imposed a driving prohibition of one year on top of the offender’s time in custody, explaining (at para. 30):

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 [the deceased’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.

[187] In my view, a similar approach is justified here. Mr. Coates shall be subject to a driving prohibition that will extend during the entire 18 month period of his conditional sentence order, and then for one year thereafter: that is, for a total of 30 months from today’s date.

[188] The Crown also seeks a firearms prohibition order. I am not satisfied that such an order is legally available in the circumstances of this case. The s. 320.16 offence of failing to stop after an accident is not a listed offence in s. 109(1) of the Criminal Code. It also does not meet either of the statutory preconditions for making a discretionary order under s. 110 of the Code, as set out in ss. 110(1)(a) and (b): it is not an offence “in the commission of which violence against a person was used, threatened or attempted”, nor is it an offence “that involves, or the subject-matter of which is, a firearm” or other weapon.

[189] Turning to the Crown’s request for a DNA collection order, the s. 320.16(1) offence is a secondary designated offence under s. 487.04(c)(viii.2) of the Criminal Code. By its nature, it is the type of offence where DNA evidence may sometimes be useful as an investigative tool. Even though Mr. Coates has no prior record of driving offences, and although I have no significant concern that he will reoffend, the impact of making a DNA collection order on Mr. Coates’s privacy and security of the person would not be severe. The defence took no position on the Crown’s request.

[190] On balance, I am satisfied that making a DNA collection order under s. 487.051(3)(b) is in the best interests of the administration of justice in the circumstances of this case.

[191] Finally, the Crown seeks an order under s. 490(9) directing that the Harley-Davidson motorcycle Mr. Sweeney was riding at the time of the accident, which has been in police custody since that time, be returned to Mr. Sweeney’s father, its lawful owner. An order to this effect will go accordingly.

[192] Finally, under s. 737 of the Code, a victim impact surcharge of $200 per offence is mandatory unless the court is satisfied that making such an order would cause undue hardship to the offender or be disproportionate in the circumstances. I am not satisfied that either of these conditions for relieving Mr. Coates of this obligation exist here. Accordingly, there will be a victim impact surcharge of $200.

The Honourable J. Dawe

Released: June 5, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

NATHAN COATES

Defendant

REASONS FOR Sentence

Dawe J.

Released: June 5, 2023

[^1]: See R. v. Best, 2012 ONCA 421 (one month consecutive); R. v. Hughes, 2012 BCCA 87 (18 months concurrent); R. v. Evans-Renaud, 2012 PECA 2 (four months); R. v. Cook, 2013 SKPC 161 (90 days).

[^2]: See R. v. Elaschuk, 2018 SKQB 312; R. v. Trudel, 2021 ONCJ 87.

[^3]: See R. v. Soos, 2021 BCPC 287; R. v. Filiault, 2022 ONCJ 541; R. v. Sanford, 2014 ONSC 5555; see also R. v. Robinson, cited by the Crown, and R. v. Kang, discussed previously.

[^4]: For instance, in R. v. Robinson, before leaving the scene the accused had stopped and checked on the motorcyclist he had hit, who turned out to be already dead, and also knew that another bystander had already called 911. In contrast, in R. v. Forrestall, 2021 ONCJ 121 the accused did not stop to check on the cyclist she had struck, although the medical evidence at trial was that he had “died immediately from the impact with the vehicle and the ground” (at para. 20).