Court File and Parties
COURT FILE NO.: 320/21 DATE: 20231106 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – ASHLYN CHRISJOHN
COUNSEL: L. Ducharme, for the Crown A. Prevost, for the Defendant
HEARD: October 18, 2023
REASONS FOR SENTENCE
Grace J. (Orally)
A. Introduction
[1] On January 24, 2023, Ms. Chrisjohn entered a plea of guilty to both counts in the indictment: first, operating a conveyance in a manner that was dangerous to the public and as a result, causing the death of Angela Hill and second, while being the operator of a conveyance, being reckless as to whether it was involved in an accident that resulted in the death of another person and failing to stop the conveyance to offer assistance, contrary to ss. 320.13(3) and 320.16(3), respectively of the Criminal Code.
[2] Based on an agreed statement of facts, findings of guilt were made and convictions entered.
[3] A Gladue report was ordered and the matter was adjourned to April 6, 2023, for submissions of sentence. Delays in the preparation of the report resulted in further adjournments.
[4] Although dated July 2023, I did not receive the Gladue report authored by Angela Nagy of the Ontario Native Women’s Association until shortly before hearing submissions on sentence on October 18, 2023. After hearing from counsel, a victim impact statement read on behalf of Ms. Hill’s son Ross Kechego and from Ms. Chrisjohn, I reserved decision until today.
[5] I start with a brief summary of the circumstances of the offences as drawn from the Agreed Statement of Fact. [^1]
B. The Circumstances of the Offences
[6] On the night in question, Ms. Chrisjohn and her cousin, Marcus Summers, were both eighteen-years-old. They operated vehicles: (i) while unlicensed: (ii) at night; (iii) after consuming alcohol and marijuana; (iv) at high speed; and (v) with their vehicles occupying both lanes of Oneida Road.
[7] Paragraphs 13 through 15 of the Agreed Statement of Fact contain this description:
At one crucial point, as both vehicles were speeding, Mr. Summers attempted to pull back into the proper lane. During this attempt, the driver’s side of Ms. Chrisjohn’s vehicle collided with the passenger side of Mr. Summers’ vehicle. The collision resulted in red paint as well as black marks being left on the driver’s side of Ms. Chrisjohn’s vehicle …
While Mr. Summers remained speeding in the lane of oncoming traffic, a black Chevrolet Cobalt automobile being operated by 54-year-old Angela Hill, was travelling on Oneida [R]oad in the opposite direction …
Mr. Summers did not maneuver … back into its proper lane, due to Ms. Chrisjohn blocking his travel …
[8] Tragically, the vehicle being driven by Mr. Summers, collided head-on with the one being driven by Ms. Hill.
[9] The results were catastrophic. Ms. Hill was pronounced dead at the scene. Mr. Summers’ injuries were substantial, necessitating numerous medical procedures, surgeries and a period of rehabilitation. His passenger, Jeremiah Antone, suffered injuries described as “moderate” too.
[10] Ms. Chrisjohn did not remain at the scene. She returned home. When her father asked about a fresh mark that appeared on the driver’s side of the vehicle his daughter had borrowed, Ms. Chrisjohn had nothing to say.
[11] I turn to Ms. Chrisjohn’s personal circumstances. Much of the information is drawn from the Gladue report.
C. The Circumstances of the Offender
[12] Ms. Chrisjohn is now twenty-two-years-old.
[13] The offender is a member of the Oneida Nation of the Thames and is the youngest of three children born while her parents were together.
[14] Her mother and maternal grandmother attended the Federal Indian Day school, Standing Stone, on the Oneida reserve. Her paternal grandfather attended the Mount Elgin (Caradoc) Federal Day School on the Chippewa of the Thames reserve.
[15] Ms. Chrisjohn’s parents separated in December 2005. She was then only 4 years old and has few memories of the short period that preceded the event. The break-up was anything but harmonious.
[16] Nonetheless, both parents reported having a close and loving relationship with their youngest daughter. Their love of and continued support for Ms. Chrisjohn jumps off the pages of the Gladue writer’s report.
[17] Ms. Chrisjohn feels the same way. Despite having limited time together, Ms. Chrisjohn said her father was always understanding, gave good advice about life and tried to look out for her. She is close to her stepfather too. While it has been tested and strained from time to time, the mother-daughter bond also remains intact.
[18] Since the end of her parents’ relationship, the number of siblings has grown. Ms. Chrisjohn is close to most, if not all of them. Connections with other family members formed too. One with a great-aunt was specifically mentioned.
[19] With encouragement from her father, lacrosse featured from ages 10 to 14. It ended when high school began. Social relationships became prominent. The consumption of alcohol soon followed.
[20] Unfortunately, starting in her early teenage years, Ms. Chrisjohn – and others – were subjected to racist commentary; particularly after participating in smudging ceremonies at the middle school they attended.
[21] At age 15, Ms. Chrisjohn left her mother’s residence and moved in with her father.
[22] From her mother’s perspective, the change was a negative one. Rules were few. Self-governance was allowed. Ms. Chrisjohn did not act responsibly or wisely. From my vantage point, those comments resonate.
[23] According to the offender, the death of her maternal grandmother hit particularly hard. Others had seen her shortly before her grandmother passed. Ms. Chrisjohn had been unable to attend.
[24] She harboured anger. Xanax was readily available. It became an attractive but false friend.
[25] Involvement in a physical confrontation in 2017 led to her expulsion from Saunders Secondary School. Introduction to the youth justice system followed. Participation in a diversion program brought that chapter to a close.
[26] She enrolled in a new high school. That did not go well. It was strange to her. Feelings of isolation resulted in frequent absences. She left school. Grade 10 was the last year completed.
[27] Thereafter, the abundance of idle time included “smoking weed, taking Xanax and drinking.”
[28] Ms. Chrisjohn said that she was sexually assaulted at age 17. Unsuccessful efforts were made to conceal it. In an effort to cope with the experience, substances featured even more.
[29] An abusive romantic relationship followed. Her partner was controlling. Her property was destroyed. She was held against her will. Jealousy burned. Her unwelcome boyfriend threatened self-harm if she did not reconcile. After learning of the prior sexual assault, he decided to direct his anger and violent urges to her instead.
[30] At some point, her father tried to intervene. It ended badly. He suffered a serious beating.
[31] During the currency of her troubled romantic relationship, Ms. Chrisjohn’s social circle shifted from her friends to his. Drinking became particularly problematic. An alcohol dependency was self-reported and independently confirmed. Several hospitalizations followed.
[32] For a while, Ms. Chrisjohn spoke periodically with a counsellor from the Canadian Mental Health Association. Recommendations were made but were not acted upon. Contact was broken. The loss of a cell phone may have been the reason.
[33] Depression continues to plague the offender. Suicidal ideations of her own have been expressed. Medications have been prescribed at the Elgin Middlesex Detention Centre (“EMDC”) to assist and to address her disturbed sleeping pattern. They have been helpful and consequently, Ms. Chrisjohn seems somewhat more hopeful. Her family has noticed dramatic improvement. Sobriety seems to have cleared her mind. The level and quality of communication has improved. Time at a treatment facility once released from custody is contemplated.
[34] With respect to the offences before the court, the Gladue report attributes the following comment to the offender:
I feel really terrible about it. There is nothing I can change now. I would if I could. This is not something that I have taken lightly. I was involved in taking someone’s life over something that could have been totally avoided. I feel mad at myself. This should have not happened.
[35] Ms. Chrisjohn has been in custody since September 2022. She appears to have made productive use of her time at EMDC. She has participated in multiple personal development classes. Independent study workbook courses have been completed. She meditates. Goals have been established: to complete the General Educational Development Test, enroll in and graduate from a four-year program in social work and then help children.
[36] A return to her father’s residence when able to do so is also contemplated. He is a double leg amputee. Her assistance is needed.
[37] Ms. Chrisjohn delivered an emotional address to the court when given an opportunity to do so. She acknowledged having made a very reckless and terrible decision the night of December 20, 2019. Every day she wishes she could have that time back. Self-forgiveness is not forthcoming.
[38] Ms. Chrisjohn said she allowed her alcoholism to go untreated. She confirmed her commitment to self-improvement; to becoming a better version of herself.
D. Letters of Support and Victim Impact Statement
[39] Separate letters supporting Ms. Chrisjohn were not filed. However, the Gladue report contains substantial input from her parents and older sister Carissa. Their support seems to be guaranteed.
[40] The following comments made by Carissa to the author of the Gladue report caught my eye. Going forward, they should be stored by Ms. Chrisjohn in a readily accessible place in her memory:
It’s great hearing her voice these days. She sounds happy. Not happy to be in jail but she sounds like herself. She has talked about wanting to go to rehab and school. Our older sister went to university and her education was funded through our Band, so I know that they can help her pay for any schooling that she wants to do. I have been telling her that she has so much potential. She can go places and she doesn’t have any kids to hold her back. She has all these opportunities. I really support her in doing positive things.
[41] As mentioned, a victim impact statement authored by Ms. Hill’s adult son, Ross Kechego, was read to the court on his behalf. Mr. Kechego made a brave attempt to read it himself but understandably, was not able to do so. It is a powerful document.
[42] Mr. Kechego was Ms. Hill’s only child. He told the court of the critical role his mother played in his life, in the lives of his two children and grandmother.
[43] Ms. Hill was the glue that held the family together. She hosted the family’s special occasions. She was the person who managed her son’s uneven relationship with his children.
[44] Mr. Kechego’s elderly grandmother lost her only daughter; the person who also served as her caregiver.
[45] Mr. Kechego spoke of feelings of loss, depression and anger. Periods of anxiety affect his ability to drive. His work as a truck driver and heavy equipment operator has been adversely affected. Drinking has increased. His financial position is less secure. Personal relationships – including his marriage – have been negatively impacted too. His love and admiration for his mother was on full display in this courtroom.
[46] Unsurprisingly, the consequences endure despite the passage of time. For whatever it is worth, I am so sorry for your family’s loss.
[47] I turn next to the applicable legal principles.
E. The Applicable Principles
[48] Very serious offences bring Ms. Chrisjohn before this court. Life imprisonment is the maximum sentence for each count on the indictment. [^2]
[49] The statutory purpose and principles of sentencing are set forth in the Criminal Code.
[50] Along with crime prevention initiatives, the fundamental objective of a sentence is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: CC, s. 718.
[51] Objectives underlying any punishment imposed include: (i) denunciation of unlawful conduct and the harm caused to victims or the community; (ii) deterring the offender and others from committing offences; (iii) where necessary, separating offenders from society; (iv) assisting in their rehabilitation; and (v) promoting a sense of responsibility in offenders and acknowledgement of the harm done: CC, s. 718.
[52] Several legislated principles apply. Four of them that are of general application apply here. First, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: CC, s. 718.1. Second, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances: CC, s. 718.2. I will address aggravating circumstances that are specific to these kinds of offences later in these reasons. Third, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: CC, s. 718.2(b). Fourth, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered, with particular attention to the circumstances of Aboriginal offenders: s. 718.2 (e).
[53] Proportionality is the fundamental principle of sentencing. As the Supreme Court of Canada explained in R. v. Ipelee, 2012 SCC 13, at para. 37:
Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality…First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system….
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [^3]
[54] The process is highly individualized. The sentence imposed must be “tailored to the individual offender and the specific offence.” [^4]
[55] The Crown provided a number of cases dealing specifically with those convicted of an offence involving the dangerous operation of a motor vehicle. Counsel agree that the sentences imposed for offences of this kind lack consistency.
[56] However, I think it fair to say that on balance, sentences in this area have increased over the years “because of the heightened recognition of the need for general deterrence and protection of the public”. [^5]
[57] After reviewing several appellate decisions, in R. v. Singh, 2018 ONSC 4598 (S.C.J.), Kurke J. made the following observation at para. 24:
In cases of dangerous driving where death or bodily harm is caused, the primary sentencing goals must be denunciation and general deterrence … [Citations omitted] [^6]
[58] I agree. Rehabilitation is clearly a relevant consideration but it occupies a secondary position.
F. Position of the Parties
[59] Most of the ancillary orders sought by the Crown are not in dispute. I will deal with them in the concluding portion of these reasons.
[60] There is a significant gap in the parties’ positions when it comes to the issue of a custodial sentence.
[61] The Crown submits that the circumstances of this case warrant the imposition of concurrent five (5) year terms.
[62] Alternative positions were advanced on Ms. Chrisjohn’s behalf. The defence first submits that Ms. Chrisjohn should receive a sentence of time served given the substantial pre-sentence credit she has accumulated.
[63] If that does not find favour, Ms. Chrisjohn’s counsel asks that the additional period be short and that the court allow her to serve any additional custodial period in the community pursuant to a conditional sentence order. [^7]
[64] In brief reply, the Crown addressed the possibility of a conditional sentence order. If granted, the prosecution asked that a period of probation follow with a term requiring community service.
G. Analysis and Decision
[65] The disagreement concerning the custodial term is based on counsel’s submissions concerning the weighing of relevant factors. There is no serious debate concerning the legal principles that are generally applicable to offences of the kind before the court. Indeed, the Crown provided all of the cases to which I was referred during argument. [^8]
[66] I have borne in mind the sentence Mr. Summers received in the Ontario Court of Justice from the Honourable Justice Mark Poland: two-years less a day, to be served in the community, GPS monitoring, a three-year driving prohibition and a three-year probation order.
[67] Ms. Chrisjohn’s counsel accepts that the gravity of the offences is high, that the degree of responsibility of his client is significant and that the underlying fact situation is deeply disturbing. She operated a vehicle while unlicensed, and after consuming alcohol and marijuana.
[68] Ms. Chrisjohn was involved in street racing. According to the agreed statement of fact, Ms. Chrisjohn’s actions prevented Mr. Summers’ efforts to pull back into the proper lane. Five seconds before the collision, the speed of the vehicle travelling alongside the offender was 133 km/hour: more than twice the permitted maximum speed.
[69] The crash demolished the vehicles involved. It prematurely ended one life and altered the lives of others in unanticipated, unwanted and crushing ways. There is a direct link between Ms. Chrisjohn’s actions, the horrific crash and the irreversible and unimaginable consequences that followed. An entirely innocent and undeserving victim was killed.
[70] While also involved in head shakingly irresponsible behaviour, Mr. Summers and Mr. Antone did not deserve the injuries they suffered.
[71] The position advanced on Ms. Chrisjohn’s behalf is based on a long list of mitigating circumstances. They are: (i) the guilty plea; (ii) the fact this is Ms. Chrisjohn’s first conviction as an adult; (iii) the fact Ms. Chrisjohn is a youthful offender who faced significant obstacles during her childhood, adolescent and teenage years; (iv) Ms. Chrisjohn’s genuine acceptance of responsibility and expression of remorse; and (v) the extremely favourable Gladue report to which I have referred.
[72] When addressing the issue of an appropriate sentence, Ms. Chrisjohn’s counsel submitted that the person currently before the court is not the same one that committed these offences. He said there has been a significant turnaround and that Ms. Chrisjohn now possesses a different mind and a different soul.
[73] Years of decline have given way to months of sobriety. An existing respect for and connection with her culture has deepened. Her commitment to overcoming past struggles is steadfast and likely to endure.
[74] The Crown’s list of mitigating circumstances largely mirrors, although in more tempered language, that presented on behalf of Ms. Chrisjohn. I accept that the Crown’s position concerning sentence reflects the credit it believes is due on their account.
[75] The prosecution urges caution when it comes to the issue of rehabilitation. Charges arising from alleged breaches of an earlier judicial release order are currently before the Ontario Court of Justice. Her counsel objected to their inclusion in the Crown’s submissions. None have been proven. The presumption of innocence applies. They predate the more than twelve-month period Ms. Chrisjohn has been in custody leading up to today.
[76] The Crown also asks that the court bear the aggravating circumstances firmly in mind. Ms. Chrisjohn failed to remain at the scene of an accident she had to know was very serious. Help was not provided. A call for assistance was not made. Her father’s inquiry concerning damage to his car was met with silence.
[77] Street racing, the consumption of intoxicating substances and the fact Ms. Chrisjohn was unlicensed are characterized as aggravating in s. 320.22 of the Criminal Code. The fact she engaged in behaviour that created a very significant and totally unacceptable risk is too: R. v. Singh, 2018 ONSC 4598, supra, at para. 25. [^9]
[78] In all of the circumstances, what is the custodial period that is fair and reasonable? By my calculation, as of today, Ms. Chrisjohn has been in custody for 449 days. Applying the usual rate of 1.5:1, she is entitled to a pre-sentence credit of 674 days. That is the equivalent of 1.84 years. That is the number Ms. Chrisjohn’s counsel asks the court to impose.
[79] As mentioned, in the alternative, the defence seeks a term which is still short enough that it could be served in the community pursuant to a conditional sentence order. Conditional sentences are now available for offences of this kind.
[80] However, such a disposition can only be made if the court imposes a sentence of imprisonment of less than two years. Even then, the court must be satisfied that service in the community would not endanger its safety and that the order would be consistent with the purpose and principles of sentencing as set forth in the Criminal Code: ss. 742.1 (a).
[81] When sentencing Mr. Summers, Poland J. concluded that was an appropriate disposition. His reasons were not available for my review. However, I accept that the list of factors relied upon included a guilty plea, genuine remorse, a youthful first offender and a compelling Gladue report. All of those are present here.
[82] I also understand that there was a pledge of cooperation which would have extended to this prosecution. Of great significance, in my view, is the fact that Mr. Summers tried to pull back into the correct lane of the roadway; an effort thwarted by Ms. Chrisjohn. Ms. Chrisjohn’s level of blameworthiness is higher. That cannot be ignored. The nature and circumstances of these offences and the harm done are egregious.
[83] Dangerous driving and impaired driving injure or kill thousands of people in Canada every year. [^10]
[84] I have no hesitation in saying that on the facts of this case, a sentence of time served or even two-years less a day, would convey a most unfortunate and ill-advised message. It would over emphasize rehabilitation. It would not give adequate weight to the principles of general or specific deterrence. Nor would it adequately denounce Ms. Chrisjohn’s conduct.
[85] The court must do what it can to address the underlying problem and to protect the people it serves. I have not forgotten the Court of Appeal’s recent reminder “that where imprisonment is required, the term should be as short as is reasonable given the circumstances”: R. v. Romano, 2021 ONCA 211, at para. 64. However, a sentence in the range advocated by the defence is simply not appropriate, even given positive changes in the personal circumstances of Ms. Chrisjohn subsequent to the commission of the offences.
[86] While I offer Ms. Chrisjohn heartfelt commendation for finally recognizing and taking steps to remove herself from the destructive path she was on, acceptance of her counsel’s submissions in this case would allow considerations relating to rehabilitation to overwhelm the critical principles of denunciation and deterrence.
[87] After careful consideration and reflection, I have concluded the sentence proposed by the defence would be disconnected from and inconsistent with the fundamental purpose and principles of sentencing summarized earlier in this decision: R. v. Romano, 2021 ONCA 211, at para. 71. [^11]
H. Disposition
[88] Given the nature and circumstances of the admitted charges, their gravity, Ms. Chrisjohn’s legal responsibility for her actions, their devastating impact on Ms. Hill and her family, the community, the personal history, present situation and prospect of rehabilitation of Ms. Chrisjohn, applicable mitigating and aggravating circumstances and the purpose, objectives and principles of sentencing as drawn from the authorities and the Criminal Code, I have concluded the following sentence is fit, proportional and just:
a) In respect of count one (dangerous driving causing death), Ms. Chrisjohn shall serve a custodial sentence of four (4) years (1,460 days). As mentioned, as of today, she is entitled to a credit for pre-sentence custody of 674 days (449 days at the rate of 1.5:1). By my calculation, that leaves 786 days or 2 years, 1 month and 26 days left to serve;
b) In respect of count two (failure to stop and render assistance) Ms. Chrisjohn shall serve a concurrent custodial sentence of three (3) years. The same credit for pre-sentence custody applies. Since the sentence is concurrent, calculation of any remaining custodial period in respect of this count is academic and unnecessary.
[89] In addition, the following ancillary orders are hereby made:
a) Given the seriousness and circumstances of the offences, I have no hesitation in exercising my discretion under ss. 320.24(4) and (5) of the Criminal Code. Ms. Chrisjohn shall be prohibited from operating a motor vehicle for a period of three (3) years plus the entire four (4) year custodial period that has been imposed.
b) Ms. Chrisjohn has been convicted of secondary designated offences. Once again, given the nature and circumstances of them, an order in Form 5.04 authorizing the taking of the number of samples of Ms. Chrisjohn’s bodily substances that is reasonably required for the purpose of forensic DNA analysis is in the best interests of the administration of justice and is hereby made.
c) In its sentencing submissions, the Crown sought a ten (10) year weapons prohibition pursuant to ss. 109(1) (a) of the Criminal Code. That subsection applies to indictable offences in the category of seriousness involved here, provided violence against a person was used, threatened or attempted. On the facts of this case, the subsection is not, in my view, engaged. The statutory wording of s. 109(1) (a) does not include the words “endangering the life or safety of another person” that is found elsewhere in the Criminal Code. [^12] In the absence of such language, the court does not have jurisdiction to make the prohibition order the Crown seeks.
d) The Gladue report and a copy of these reasons for sentence are to be provided to Correctional Services Canada. The Gladue writer’s recommendations are found at the bottom of page 21 and top of page 22 of her report. They are adopted by the court recognizing adaptations will be necessary in the federal correctional system.
e) Any victim surcharge is waived.
“Justice A.D. Grace”
GRACE J.
Delivered: November 6, 2023
Footnotes
[^1]: It was made exhibit 1 during the November 18, 2022 attendance. [^2]: See s. 320.21 of the Criminal Code. [^3]: See, too, para. 61. [^4]: R. v. Morris, 2021 ONCA 680, at para. 56. [^5]: The excerpt is drawn from R. v. Boukchev (2003), 177 O.A.C. (Docket no. C39596) at para. 6. It was quoted with approval in R. v. Regier, 2011 ONCA 557, at para. 2. See, too, R. v. Junkert, 2010 ONCA 549, at paras. 39 – 50. [^6]: Affirmed 2019 ONCA 872. [^7]: See s. 742.1 of the Criminal Code. [^8]: In addition to those mentioned in the text of or later footnotes in these reasons for sentence, they were R. v. Boily, 2022 ONCA 611; R. v. Lis, 2020 ONCA 551; R. v. Stevens, 2017 ONCA 686; R. v. McLennan, 2016 ONCA 732; R. v. Durani, 2022 ONCA 17 and R. v. Goulet, 2009 ONCA 786. [^9]: See, too, R. v. Currie, at para. 5. [^10]: That is the first recital in the preamble to amendments to the Criminal Code set forth in Bill C-46. It was assented to on June 21, 2018. [^11]: See, too, R. v. Nusrat, 2009 ONCA 31, at para. 55. [^12]: That language is included in the definition of “serious personal injury offence” in s. 752 of the Criminal Code.
