Court File and Parties

COURT FILE NO.: CR22-38 DATE: 2024-03-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHAWN NORRIS Defendant

Counsel: Heather Donkers, for the Crown Robert Farrington, for the Defendant

Trial Judgment: August 12, 2023 Sentencing Submissions: December 15, 2023

Reasons for Sentence

Justice P.J. Moore

Introduction

[1] I found Shawn Norris guilty, after a trial, of impaired driving cause death, impaired driving cause bodily harm, dangerous driving cause death, and dangerous driving cause bodily harm. The victims are Paul Kay and Penny Kay. They were two months shy of their 50th anniversary as a couple.

[2] The facts are set out in detail in my trial decision, but I shall summarize them briefly. On a clear dry fall day October 17, 2019, at around 12:30 p.m., Shawn Norris was operating his Hyundai Sonata southbound on Highbury Avenue in London, Ontario. At a point where the road was divided with two lanes in each direction and a grass median in between, he crossed the 30-foot grass median, entered the northbound lanes, stopped, and then re-crossed the median back to the southbound lanes. He continued driving for another 7.1 kilometers. The highway became joined with one lane in each direction. In the two minutes before the collision, he was observed swerving 5-6 times including onto the gravel shoulder of his lane and then across the center line into the oncoming lane, including all the way to the gravel shoulder of the oncoming lane.

[3] Paul Kay and his wife Penny Kay were traveling northbound on Highbury Avenue in their Ford Escape when the defendant crossed the center line and drove towards them in their lane. Mr. Kay went to the gravel shoulder to try and avoid a collision, but they were struck head-on by the defendant’s vehicle. Observers did not see the defendant brake at any time. Penny Kay was fatally injured, and Paul Kay suffered serious injuries.

[4] The defendant was also seriously injured and had to be extracted from his vehicle by the fire department.

[5] I found that prior to the collision, the defendant had ingested methadone (a double dose), Lorazepam, Trazadone, and Venlafaxine and that his ability to operate his vehicle was impaired by drug at the time of the collision and that his manner of driving was clearly dangerous.

[6] It is tragic that despite the efforts of the government, the courts, and various advocacy groups, impaired driving continues to exact a heavy toll on our roadways. The devastation and destruction of impaired driving was recognized by the Supreme Court of Canada almost 30 years ago in the case of R. v. Bernshaw where Cory J. noted:

Every year drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[7] I appreciate that regardless of the length of the jail term that I impose today, the time will come when Mr. Norris will be released from custody. The time will not come when the family of Penny Kay will have their mother, grandmother, and wife back to make their family whole again. Paul Kay will likely continue to suffer from both his physical pain and the emotional pain of that terrible day. While the criminal justice system can denounce the conduct and attempt to deter others, it cannot compensate for the loss that has been suffered.

The Victim Impact Information

[8] A Victim Impact Statement was filed and read in by Paul Kay. In it, he poignantly expressed the sense of loss not only to himself by to their children and grandchildren. He talked about the “ripple effect” Penny Kay’s death has had on the whole family.

[9] Mr. Kay outlines the impact it has had on the three grandchildren, from asking why she had to die, acting out in school and getting counseling to deal with emotions. Their son stepped down from teaching after 25 years to take on a less stressful position.

[10] Mr. Kay advised that the offences have “destroyed [his] health”. He indicates that he is in constant pain. Even after years of constant physio, his lower back pain continues to get worse.

[11] He and Penny were just two months away from their 50th wedding anniversary. They had planned to spend winters in Australia with their son and his family, deepening their ties with their grandchildren.

[12] Mr. Kay recounts how the emotional pain is at times worse than the physical pain. Penny Kay’s death has left him alone “without [his] lifelong friend and wife.”

[13] Despite his lower back pain, Mr. Kay tries to work part-time as a salesperson as he can’t bear to be home alone. However, he experiences fear when meeting another car who is crowding the centre line.

[14] When asked by the Crown to tell her about Penny, Mr. Kay said that she was “the glue that held the family together” and that her death has “left a hole that cannot be filled.”

The Circumstances of Mr. Norris

[15] I heard submission from Mr. Farrington about Mr. Norris’ circumstances. A Pre-sentence report (PSR) was prepared and filed on behalf of Mr. Norris. The defence provided a letter from Dr. Lawrence, a psychologist with Dale Brain Injury Services. I am also in receipt of Mr. Norris’s medical records which were filed as exhibits at the trial.

[16] Mr. Norris is currently 61 years old and was 57 at the time of these offences. The report indicates that he is divorced and has two children ages 30 and 19. Mr. Norris was one of seven children and was born in Newfoundland, but the family relocated to Ontario when he was very young. His father was a nurse but became ill with cancer. His mother supported the family through her work at a home for unwed mothers, as a waitress and as a custodian. Mr. Norris reported a positive childhood free of abuse with loving and supportive parents and good relationships with his siblings. He moved out of the house when he was 17 to be independent.

[17] Mr. Norris attended school until grade twelve (12) but quit before obtaining his diploma to work. He advised he was in a specialized learning environment as he had difficulty comprehending the subjects being taught but was never formally diagnosed with a learning disability. He worked as a truck driver/garbage collector for a waste management company for twenty-five (25) years. He suffered pain as a result of his job and was prescribed pain medication which he admitted to overusing and then purchasing drugs illegally. He reported that a knee injury limited his mobility and ended his career. He is currently on long-term disability and the Canada Pension Plan.

[18] His relationship with his ex-partner began when he was in his thirties but ended in 2011 after he was charged with domestic assault. Their children lived full-time with their mother, and at the time of the report Mr. Norris had not had any contact for about 2 years.

[19] Mr. Norris suffered the loss of his father when he was 40, and lost his sister a week later. He reported having a hard time coping with the losses and used pain killers to help him cope. He pulled away from his other siblings and their families when he started using drugs.

[20] In 2021, while awaiting trial for these offences, Mr. Norris reported not feeling well and having difficulty remembering things. He was taken to the hospital where he learned that he had a lung infection that had spread to his brain. He underwent surgery and had a mass removed from his brain. His mother reports that after the surgery his personality changed. His speech was affected, and he continued to have memory, mobility and anger issues. She reported that he relies on her to cook his meals and to keep him organized as he has difficulty remembering appointments and to take his medication.

[21] Mike Fisher, Rehab Facilitator at Dale Brain Injury Services, spoke to the PSR writer and advised that he has been supporting the subject in the community for the past 2 months. Mr. Norris participated in a 3-week stay at Dale Brain Injury housing to evaluate his ability to reside independently. He was found to do well residing independently but required support in preparing and making meals and cues to take his medication. Mr. Fisher reported that in his experience working with Mr. Norris he appeared “gracious kind and appreciative of our support”. He is working with him on reading, writing, comprehension and working through his anxiety.

[22] Mr. Norris advised the report writer that he had been diagnosed with an anxiety disorder twenty (20) years ago and saw a psychiatrist regularly. He reported being admitted to the local psychiatric hospital on multiple occasions for suicide attempts, although none recently. He is on medication to treat his symptoms of anxiety.

[23] Mr. Norris reported that he began experimenting with alcohol and marijuana with friends when he was sixteen (16). In his twenties, he started abusing prescribed pain medication to deal with the pain of his physically demanding job. He then started purchasing Percocet and Tylenol 3 pills illegally. He had a positive relationship with his siblings but began isolating himself when he started using drugs.

[24] In 2013, he attended a residential treatment program and completed it. This appears to coincide with his being charged for the 3rd time with impaired driving. He reports he remained sober for a year after his discharge but began using pain killers again due to the physical pain he was experiencing. He began the methadone treatment program 15 years ago to help with addiction and pain issues. He told the PSR writer that he does not believe he requires any further treatment or counseling for substance use.

[25] The report writer indicated that Mr. Norris was polite and forthcoming during the preparation of the report. She opined that Mr. Norris takes responsibility for his actions but fails to see the seriousness of the offences. He told her that on the day of the incident, he was recovering from knee surgery and left his residence to get prescribed medication and methadone. He stated that he was arguing with his ex-partner, and she made a comment about burning down the house which caused him to hurry. He acknowledged that it was still his responsibility as he chose to drive and stated that he “would never have driven if I knew that the medication would make me that impaired”. He said the incident is the hardest thing he had ever had to deal with and that he thinks about it every night.

[26] Mr. Norris’s mother indicated that she has talked at length with him about the consequences to the victims and their family for his irresponsibility in not taking his medication properly.

[27] A former Pastor was interviewed for the report and indicated that Mr. Norris “was a hard-working blue-collar guy who got injured and became addicted to pain medication and involved in the criminal justice system”. He described Mr. Norris as “good hearted” and helpful who always tries his best at everything.

Letter from Dr. Lawrence

[28] Dr. Lawrence is a psychologist who works with Dale Brain Injury Services. In his letter dated September 25, 2023, he outlines Mr. Norris’s involvement with the clinic. Mr. Norris was diagnosed with an acquired brain injury in 2021 and received support first from the Intensive Community Transition Team and from Community Transitions Services (Outreach).

[29] Mr. Norris was noted by staff to be exhibiting symptoms of anxiety and depression and was referred to Dr. Lawrence for counseling. At the time of the letter, he had attended two sessions with Dr. Lawrence with further appointments pending. I was not told how many sessions he had attended at the time of sentencing submissions.

[30] The letter indicates that due to his brain injury, Mr. Norris demonstrates significant challenges with regard to cognitive processes known as executive functioning. This relates to the ability to process information accurately, to plan, organize and execute actions needed to solve problems and to make decisions. Dr. Lawrence notes that for Mr. Norris attention and concentration are problematic and he can be impulsive. He also demonstrates significant short-term memory deficits which impact on his day-to-day functioning. He noted that Mr. Norris can become overwhelmed when faced with difficult issues and can default to states of confusion and frustration which greatly interfere with problem-solving and decision-making.

[31] Dr. Lawrence opined that due to Mr. Norris’s executive functioning challenges, he can be expected to have difficulty establishing the connection between his own behaviour and the consequences to himself and others that occur. He may, therefore, not learn from his mistakes but repeat the same actions with the same consequences, even if those consequences prove negative for him.

[32] Dr. Lawrence indicated that Mr. Norris will continue to require ongoing monitoring and support to assist him with some of the inherent challenges in daily living.

Injuries from Collision

[33] Mr. Norris was badly injured in the collision and had to be extracted from his car by firefighters. His injuries included: left nasal bone fracture; left clavicle fracture; sternal body fracture; four rib fractures to the right ribs; right upper lobe contusion; sigmoid mesenteric hematoma; right radius and ulna fractures; and left knee posterior dislocation. The medical records indicate that he had opened his recent wound from his knee surgery and there was an extensor mechanism rupture. Mr. Norris used a walker for his attendance at court for these proceedings. Mr. Norris suffered amnesia and did not remember the collision.

Criminal Record

[34] Mr. Norris has a criminal record that was included in the PSR and was admitted as accurate. His record is as follows. I will just use months and years for ease of reference:

Jan 1979 BE & Theft Suspended Sentence for 1 year July 1983 Attempt Theft $150 fine Fail to Appear $100 fine Jan 1985 BE & Theft 2 months jail Fail to Appear 7 days consecutive Breach Recog. 7 days consecutive Breach Recog. 30 days consecutive Jan 1988 Fail to Attend 45 days Impaired Driving $500 fine and 3 mos. driving prohibition Oct 1990 Impaired Driving 30 days and 2 year driving prohibition Jan 2011 Assault Susp. Sentence 12 mos. probation, 109 order Jan 2013 Impaired Driving $2000 fine, 2 year probation, 3 year driving prohibition

[35] Of the greatest concern are the three prior impaired driving convictions in 1988, 1990 and 2013. The last being 6 years and 9 months prior to these offences.

[36] It is my understanding that Mr. Norris did not spend any time in pre-sentence custody for this offence.

The Positions of the Parties

[37] On behalf of the Crown, Ms. Donkers submits that I should impose a sentence of ten years in jail on the count of impaired driving causing death, ten years concurrent on the dangerous driving cause death, and seven years concurrent on impaired driving cause bodily harm and dangerous driving cause bodily harm respectively. She seeks a driving prohibition for life, to take effect after the expiration of the jail term.

[38] Ms. Donkers provided a written overview of her position in addition to her oral submissions. She contends that the paramount objectives of sentencing in this case are denunciation and general deterrence. She submits that specific deterrence is also an important factor here, given it is Mr. Norris’s fourth conviction for impaired driving. She agrees that rehabilitation is also a lesser consideration.

[39] Ms. Donkers points to the passage in Dr. Lawrence’s letter talking about Mr. Norris’s inability to learn from his mistakes, despite the consequences, which she suggests should cause the Court great concern about his risk to re-offend after his release. She points to the fact, as indicated in the PSR, that Mr. Norris does not believe he needs any further counseling for his addiction issues as also being of concern. She submits that, due to his risk, he needs to be separated from society.

[40] The Crown argues that Bill C-46, which received Royal Assent in June 2018, shows Parliament’s clear intention for sentences for crimes of this nature to increase from what they have been in the past. She reviewed with the court a number of cases, some of which I will review below, which she argues demonstrate a clear upward trend in sentencing.

[41] Ms. Donkers submitted that the following factors are aggravating: the criminal record, that there was more than one victim, the devastating impact on the Kay family, the nature of the driving being in the middle of the day on a busy road thereby endangering many members of the public, the time and distance of the driving (not a momentary lapse), the fact that drugs were easily accessible to Mr. Norris, both on the passenger seat and in the console. She acknowledges that Mr. Norris has taken some responsibility for his actions and has expressed remorse for the impact of his actions on the victims. She argues that the addiction issue is not necessarily a mitigating factor. Mr. Norris was well aware of his addiction and has sought very little treatment. She also acknowledges his acquired brain injury but points out that it post-dates the offences and does not mitigate his moral blameworthiness for them.

[42] On behalf of Mr. Norris, Mr. Farrington submits that the sentence on each of the counts should be four years in the penitentiary to be served concurrently. He does not take issue with the lifetime prohibition.

[43] Mr. Farrington submits that Mr. Norris took responsibility for his actions and never contested his identity or the collision. Simply, due to his amnesia surrounding the incident, he was not able to enter a plea. Mr. Farrington noted that through admissions the trial was considerably shortened from a couple of weeks to a couple of days.

[44] He submits that Mr. Norris followed the sad path of many from prescription pain medication to addiction to illegal drugs. He submits that Mr. Norris’s addiction issues are a mitigating factor that contributed to these offences. He points out that Mr. Norris’s longest sentence for impaired driving was 30 days and that his last conviction was over six years prior to these offences.

[45] Mr. Farrington points to the positive comments made by his former pastor and by his mother about Mr. Norris, that he was a good family man and a good-hearted, hardworking person.

[46] Mr. Farrington argues that Mr. Norris was suffering from anxiety at the time of the offences and now struggles with an acquired brain injury. He submits that in the case of Mr. Norris, denunciation and deterrence should not be over-emphasized and should play a lesser role given his current mental/physical state. He submits that because of the acquired brain injury, Mr. Norris is simply not able to understand or control his actions. He points to Dr. Lawrence’s letter to explain why Mr. Norris is not able to “see the seriousness of his actions”. He submits that rehabilitation and restraint are still critical factors.

[47] In addition, Mr. Farrington, submits that Mr. Norris will have to live with the physical injuries he suffered in the collision for the rest of his life.

The Objectives of Sentencing

[48] The objectives of sentencing, long recognized at common law, have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[49] Section 718.1 sets out the principle of proportionality in sentencing. It provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 enumerates a number of other sentencing principles. In particular, it provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances relating to the offence or the offender. Section 718.2 also requires that there be parity in sentencing. Parity is tied to proportionality and means that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[50] In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society’s condemnation of the conduct. R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties. R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 73. Specific deterrence refers to deterring the particular offender from committing the same or similar acts.

Sentencing Parameters

[51] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in any given case is, in the words of the Supreme Court of Canada, “a highly individualized exercise that goes beyond a purely mathematical calculation.” Lacasse, at para. 58. The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge. Lacasse, at para. 58 and 143.

[52] One measure of the seriousness of a particular kind of offence is its maximum penalty. The maximum penalty for impaired driving causing death was increased by Parliament in 2000, from fourteen years in jail, to life imprisonment. The fact that a life sentence for impaired driving cause death is now within the realm of possibility signals Parliament’s intention that offences of impaired driving causing death be treated severely by the courts. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641, at para. 20.

[53] The Court of Appeal for Ontario has indicated that there is no particular range of sentence that applies as each case is specific to the individual facts of the case and characteristics of the offender and can be committed in an almost infinite variety of circumstances. R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at para 40. The Supreme Court has also recently re-iterated that even where sentencing ranges apply to a particular crime, they are only guidelines and not hard and fast rules. Lacasse, at para. 60. R. v. Friessen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 37.

Analysis

[54] Despite the Appellate Court’s caution that there is no particular range for impaired driving causing death and that sentencing ranges are simply guidelines, the court may gain some guidance from recent decisions from the Ontario Court of Appeal and Superior Court of Justice.

[55] In R. v. Muzzo, 2016 ONSC 2068, Fuerst J. examined the fairly recent appellate authorities of Ramage, Junkert, and Kummer from the Ontario Court of Appeal and stated that two propositions arose from those cases. The first is that the offence of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character. The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society’s abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines. She sentenced Mr. Muzzo who plead guilty to the horrific deaths of four members of the Neville-Lake family, including three children and to injuring two others to ten (10) years jail and twelve-year driving prohibition. This despite Mr. Muzzo’s low risk to reoffend, his early guilty plea and his otherwise good character and standing in the community.

[56] In Ramage, the court upheld a four-year sentence imposed on an impaired driver who was convicted after trial where the facts included that his passenger was killed and another person had debilitating injuries. He had no criminal record, was described as an outstanding member of the community and was deeply remorseful. The family of the deceased asked that no jail be imposed.

[57] In Junkert, the court upheld a five-year sentence on a driver who, when speeding, went on to the sidewalk and struck and killed a jogger. The offender was convicted after trial and was a first offender. The court noted a “very gradual” trend upward in sentences.

[58] In Kummer, an eight-year sentence was imposed on a driver who caused a collision while driving at an extreme speed that resulted in three deaths. Two of the deaths involved twelve-year-old boys in the other car. His blood alcohol concentration was twice the legal limit. He had no criminal record but prior conviction for careless driving and failing to report an accident where he drove onto the runway of the London airport after he had been drinking. He plead guilty. The court noted that the Ramage and Junkert “do not and cannot cap the sentences available for this kind of offence.” Kummer, at para. 19.

[59] The Crown gave me a number of other authorities in support of their 10-year position and in support of their position that sentences for both impaired driving and dangerous driving cause death and cause bodily harm have increased. I shall not review all of the authorities provided, but I did review and consider them all.

[60] The case of R. v. Altiman, 2019 ONCA 511 is a 2019 London case where the accused was driving while intoxicated and ran a red light, colliding with another vehicle. The two rear passengers in the other vehicle were killed and the two front passengers were injured. He entered an early guilty plea to two counts of impaired driving cause death, two counts of criminal negligence cause death, two counts of impaired driving cause bodily harm and two counts of criminal negligence cause bodily harm. The trial judge imposed a 10 year sentence of imprisonment, but that was reduced by the Ontario Court of Appeal to seven (7) years, based on their finding that the earlier sentence was more in line with offenders with a prior record, which Mr. Altiman did not have, and also in recognition of application of Gladue principles in determining an appropriate sentence.

[61] The Court of Appeal in Altiman reviewed a number of cases, including many that are local to London, Ontario. The Court found that there has been a gradual increase in the length of sentences and that trend can be seen since 2010 citing the three cases referred to by Fuerst J. in the Muzzo decision as well as the case of Ninanobe, 2010 ONCA 508. In R. v. Ninanobe, an indigenous offender was sentenced to five years imprisonment for impaired driving cause death and impaired driving cause bodily harm. He had a prior conviction for impaired driving. The court upheld a five-year sentence of imprisonment.

[62] After reviewing a wide range of authorities, Brown J. in Altiman, while acknowledging that the Court had not defined a formal range of sentences for the offence of impaired driving cause death, found that his review of the caselaw lead him to conclude that since the turn of the decade (2010) in the province of Ontario, sentences for impaired driving cause death typically have fallen in the four to six-year range, unless the offender has a prior criminal or driving offence record. In those cases, lengthier sentences ranging from seven and one-half years to twelve years have been imposed. Altiman, at para. 70 and 71.

[63] The Crown provided the court with other cases where significant sentences were imposed where there was a prior driving record. In R. v. Robertson, 2022 ONCJ 240, the accused was a 20 year old indigenous person with a fifteen (15) HTA offences, he had been in a collision two days prior where there were no injuries and then was driving 135 km/hr in a 70 zone when he failed to stop for a red light and collided with another car, killing the mother and her three children. The THC in his blood was eight times the legal limit. He had a history of abuse and addiction. He had no criminal record. He plead guilty and demonstrated remorse. He was sentenced to 17 years jail less pre-sentence custody.

[64] In R. v. Mascarenhas (2002), 60 O.R. (3d) 465, a case from 20 years ago, the accused plead guilty to criminal negligence cause death, two counts of fail to comply with recognizance and one count of impaired driving and one count drive suspended, after several Crown witnesses had testified. He struck and killed two pedestrians. His blood alcohol was 339 and 353 milligrams of alcohol per 100 milliliters. He had a 15 year history of alcohol abuse and three prior convictions for drinking and driving and had done little to address his alcoholism. The trial judge imposed a sentence of nine years on the criminal negligence cause death and consecutive sentences on the breaches and impaired for a total twelve year sentence less pre-sentence custody. The Court of Appeal found that the criminal negligence sentence was entirely appropriate, but the impaired driving offence should have been concurrent and reduced the sentence to 10 years less presentence custody.

[65] The defence provided the Court three cases relating to the appropriate range of sentence.

[66] In R. v. Megna, 2016 ONCJ 624, the offender was travelling at a high rate of speed, lost control and struck another vehicle. The passenger in Mr. Megna’s vehicle was killed and the driver of the other vehicle sustained serious injuries. His BAC was three times the legal limit. He pled guilty to impaired driving causing death and impaired driving causing bodily harm and showed remorse. He was 26 with no prior criminal or driving record. The trial judge found in mitigation his guilty plea and demonstrated remorse, his relatively young age, the fact he was a first offender, no indication of alcohol abuse, and strong family support. He was sentenced to 4 years imprisonment.

[67] In R. v. DeJong, 2016 ONCJ 418, the offender had been drinking at a bar, was driving at about 90 kph in a 40 zone on the Western University campus, failed to stop at a stop sign, lost control and struck a pedestrian from behind. His BAC was 171. The offender was 25, plead guilty to Impaired driving Cause death and had a very positive pre-sentence report which reflected strong family support. He was engaged in counseling and indicated his remorse. He had no criminal record and one HTA conviction for distracted driving. He was sentenced to five years imprisonment and a 10 year driving prohibition.

[68] Finally, in R. v. Sargeant, 2016 ONCJ 710, the offender accelerated through a red light and collided with another vehicle. The driver of the other vehicle was treated for soft tissue injury, the passenger in the accused’s vehicle died from his injuries. The offender’s vehicle was not registered and did not have insurance. The offender plead guilty to one count of impaired cause death at an early stage and was 24 years old at the time of sentencing. He had no criminal record. He had HTA convictions for speeding and running a red light. He had strong family and community support. The court found he was of good character and had a high probability of rehabilitation. He was sentenced to 4 years and 6 months incarceration and an 8 year driving prohibition.

[69] In this particular case, the court has to determine what effect Mr. Norris’s addiction and his subsequent acquired brain injury should have on an appropriate sentence as well as his pre-existing anxiety and depression issues.

[70] The Defence provided the Court with cases dealing with offenders who suffered from mental or physical disorders or both. The Defence acknowledges that the acquired brain injury that occurred subsequent to these offences does not mitigate the moral blameworthiness of Mr. Norris’s conduct that forms the basis of the offences but submits that it is still a personal factor that may ameliorate the sentence.

[71] In a recent case, the British Columbia Court of Appeal considered the impact of an offender’s mental illness on sentencing. In R. v. Nystrom, 2023 BCCA 232, the court found that:

[21] A medically recognized mental disorder such as cognitive impairment, which has caused or contributed to the commission of an offence, may be a mitigating factor that reduces an offender’s moral culpability and thereby warrants a reduction in sentence. In these circumstances, both general and specific deterrence will necessarily play a diminished role in determining a fit sentence: R. v. Badhesa, 2019 BCCA 70 at para. 42; R. v. Penttila, 2020 BCCA 63 at paras. 68–69.

[22] Sentencing judges must consider evidence of the nature and magnitude of the disorder, determine its overall role in the offending conduct, and be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence. Detailed and specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct; generalized evidence is not sufficient: Badhesa at para. 43; R. v. Botticelli, 2022 BCCA 344 at paras. 21–22; see also R. v. Scofield, 2019 BCCA 3; R. v. Okemow, 2017 MBCA 59 at para. 73.

See also: R. v. Bertrand Marchand, 2023 SCC 26, at para. 158.

[72] I have evidence that Mr. Norris had some depression and anxiety issues prior to and at the time of the collision. He was, in fact, on medication for those issues. No evidence was called as to how those issues impacted on his moral culpability in relation to these offences. The evidence that I do have in the medical reports indicated that he was advised that he should not be taking Lorazepam, must take his medication as prescribed and that he was cautioned on numerous occasions about the dangers of driving while impaired.

[73] I do not find on a balance of probabilities that it has been shown that Mr. Norris’s medical/mental conditions on the date of the collision caused or contributed to the commission of the offences of which he was convicted.

[74] I do have evidence as to the impact of the acquired brain injury on Mr. Norris’s executive functioning. I agree that this evidence “cuts both ways”. Based on the letter from Dr. Lawrence, it likely means that he may not be deterred from future conduct by the length of the sentence. However, it also may mean that because he is not deterred, he is a greater danger to the public after his release. The Defence indicates that Mr. Norris won’t be driving after his release. Certainly, he will be on a court order not to drive, but I have no evidence that he is not capable of driving if he chooses to do so.

[75] In examining the risk to the public and the need to potentially increase the sentence due to that risk and keep Mr. Norris separate from society, I have considered that Mr. Norris does not have any criminal or driving record for driving disqualified or driving suspended. I have no evidence that he has driven a vehicle in the last 4.5 years since the time of the collision and 2.5 years since the acquired brain injury. So, while the information about Mr. Norris’s impulsivity and inability to connect his own actions with their consequences as a result of the acquired brain injury causes the court concern, I have no reason to believe that he will not follow the driving prohibition order that I will impose.

[76] The acquired brain injury cannot operate to reduce Mr. Norris’s moral culpability at the time of the offences since it happened subsequently, but is a personal factor that the court must consider when imposing a sentence.

[77] In R. v. Dubasz, 1995 ABCA 189, the offender plead guilty to manslaughter on facts the court described as a “near murder”. The offender suffered from irreversible organic brain damage and perhaps other symptoms of mental disorder. The trial judge expressed sympathy for this condition that was not of the accused’s making and imposed a fifteen-year sentence. The Court of Appeal found that “given the psychiatric undertones” the sentence was too severe and should be reduced to twelve years with a recommendation for a psychiatric facility. It is not clear from the appellate decision whether the offender was suffering from the disorder at the time of the offence, but it appears that is likely and that it reduced his moral culpability.

[78] In R. v. Aldina, [1995] O.J. No. 2319, the offender was bank employee charged with a multi-million-dollar fraud. She plead guilty. She had been involved in a car accident which preceded the fraud and caused her medical and potential mental difficulties. The defence called three doctors at the sentencing who were familiar with the conditions at the penitentiary to provide evidence that medical facilities were available, but the offender would have an “extremely difficult” time in incarceration. There was another report filed that although a jail sentence would “not mean a death sentence” it would be very difficult. The trial judge found that as a matter of principle, a serious illness of an accused must be taken into account on sentencing. He reduced the sentence from the penitentiary term otherwise warranted to fifteen months in the reformatory.

[79] In R. v. Berman, 2010 ABPC 371, the offender plead guilty to transmitting two images of child pornography. The defence was seeking the minimum 90 days and the Crown was seeking an increased penalty. The trial judge found the Mr. Berman was a socially awkward individual, with no relationship experience, who was likely suffered from Asperger Disorder. He was found to have insight into his behaviour and had a forensic assessment showing that he was at low risk to reoffend. The trial judge found that he had been specifically deterred by his arrest and prosecution. The trial judge found that due to the offender’s psychological make-up, prison would be extremely difficult and will affect him more than other individuals. In finding that the minimum sentence was warranted, the trial judge relied on the following passage from the Alberta Court of Appeal case, R. v. Belcourt, 2010 ABCA 319 where the majority found at para. 8:

The effect of a mental disorder on sentencing is helpfully summarized in C.C. Ruby, Sentencing (6th ed.) at para 5.246 and 5.256:

It is, therefore, clear the sentence can be reduced on psychiatric grounds in two instances: (1) when the mental illness contributed to or caused the commission of the offence; or (2) when the effect of imprisonment or any other penalty would be disproportionately severe because of the offender's mental illness...

General deterrence would be given little, if any, weight in the case where an offender is suffering from a mental disorder because such an offender is not an appropriate medium for making an example to others.

[80] In some cases, it was the offender’s physical condition that resulted in a reduced sentence. In R. v. Riley, 2014 ONSC 3264, the offender was sentenced to four years less pre-trial custody (which was credited on a 1:1 basis) for criminal negligence causing death, criminal negligence causing bodily harm, impaired driving causing bodily harm, and possession of stolen motor vehicle. He was impaired and driving at an excessive speed when he lost control hitting a house, killing one person and seriously injuring another. He plead guilty which was found to be a significant mitigating factor. He was only 24, Indigenous and had prior record that included fail to stop for police and dangerous driving. As a result of injuries sustained in the collision, he could not eat or drink and required seven IV bags administered through a “pic line”. The veins in his right arm were no longer usable and when the veins in his left arm were used up, he would need a pic line inserted in his chest. He required 24 hour medical supervision, was at a high risk of infection and had already survived two serious infections that required blood transfusions. He was being held in the infirmary at Maplehurst Detention Centre. He had bleeding ulcers and required pain medication eight times a day. The Crown had sought a further two years less a day jail and the Defence 15 months. The Court indicated that it would likely have imposed a much lengthier sentence but for the issue of delay, the loss of earned remission and the defendant’s particular serious medical situation.

[81] In the case provided of R. v. K.S., 2014 ABPC 224, the offenders’ disabilities included impairment to their intellectual and functional capacity and pre-existed the offences and therefore impacted on their degree of moral culpability. The trial judge indicated that the psychological, intellectual and other impairments and mental disorder of the offenders affected not only their moral culpability, but also bore on the ability to sentence to achieve certain specific sentencing objectives. The offences were sexual offences. He concluded at para. 49 that “denunciation is best expressed through the sentencing of individuals who more generally represent the mainstream society. Offenders with serious intellectual impairment or mental disorders are not a good medium in which to express society’s denunciation of this offensive behaviour”.

[82] In R. v. Young, 2010 ONSC 3131, the offender plead guilty to impaired causing death and two counts of impaired driving causing bodily injury. His truck drifted over the center line into the path of an approaching car, whose driver pulled to the right to try and avoid the head-on collision. One person died and two were injured. At the time of the collision, he had a BAC of 160 mg/100 ml. The Crown sought a four year sentence in addition to one year credit pre-trial custody and strict house arrest. The offender was 48 years old and largely an exemplary citizen with 21 years in the armed forces. He had a prior impaired driving conviction in 1999 (11 years prior). He had community support and had maintained his sobriety and participated actively in addiction services since the collision.

[83] Mr. Young’s doctor testified that as someone afflicted with severe depression, unrelated to alcohol consumption, he would very likely be more severely affected by incarceration than others, although he agreed that a federal facility would have services appropriate to his needs. In addition, he was diagnosed with generalized anxiety disorder and alcohol dependence as well as rheumatoid arthritis and fibromyalgia. The Crown argued that there was no connection between the offender’s medical condition and driving impaired. The court imposed the sentence sought by the Crown indicating at para. 42:

A two-year sentence with the view to residential and other treatment following would constitute an error in law. While his condition is cause for consideration, I'm not persuaded it cannot be appropriately monitored and treated by the prison authorities. The medical reporting should be brought to the attention of the prison authorities if it has not been done already. Rehabilitation as a goal of sentencing is not the restoration of an offender's physical and mental health, rather it is his reinstatement as a functioning and law-abiding member of the community. I am sensitive to Mr. Young's physical and emotional issues and I've considered Doctor Ward's opinion regarding the impact that incarceration will have in this case. I am alert to the resources available in the federal penal system and hope he is a candidate for empathetic treatment. The Ontario Court of Appeal in R. v. Shahnawaz (2000), 51 O.R. (3d) 29 determined it to be an error in law to unduly emphasize treatment and medical condition as crucial rehabilitation factors when they are unconnected to the commission of the offence.

[84] In R. v. Shahnawaz (2000), 51 O.R. (3d) 29, a majority of the Ontario Court of Appeal overturned a conditional sentence for the accused who was convicted by a jury of trafficking in heroin. The defence called two doctors on the sentencing, the offender’s regular doctor and a psychiatrist. The doctors detailed how the defendant suffered from post-traumatic stress resulting from torture as well as chronic depression and anxiety, and had limited cognitive skills and limited resources to deal with stressful things. He also had physical ailments including a stomach disorder, muscle pain and headaches. Shahnawaz, at para. 21. The trial judge gave considerable weight to their evidence that the defendant’s “continued incarceration will probably lead to increased intensity of the Post-Traumatic Stress Disorder and severity of depression. Even with specific treatment, including counseling and medication, continued incarceration represents contemporary trauma and re-traumatization for Mr. Shahnawaz”.

[85] The trial judge found that “judicial clemency is frequently exercised in cases where an accused would be particularly affected by imprisonment because of physical and mental disabilities” and that “it is also recognized that in such cases, less weight need be given to the principle of general deterrence” while noting that there was no clear evidence that the accused’s disabilities played any role in the commission of the offences. Shahnawaz, at para. 29.

[86] The Court of Appeal concurred that there was no evidence that there was any connection between the defendant’s post-traumatic stress disorder and his illegal drug activity. Absent any evidence of the impact of the disorder on the offender’s moral culpability, the Court concluded at para. 34:

What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an “extreme effect” on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime. The court must not lose sight of the fact, however, that it is difficult to predict Mr. Shahnawaz’s future condition and that the state of any prisoner's health while in custody is largely a matter for the correctional authorities. It is my view that, taking all the circumstance into account, including seven months spent in custody awaiting sentence and the time served on the conditional sentence of fit sentence would have been one of six years.

[87] I do not find that an addiction in and of itself is a mitigating factor unless it reduces the moral culpability of the offender in committing the particular offence. I cannot say that Mr. Norris’s addiction issues operated in such a way to reduce his moral culpability in this case. The evidence before the court was that he was on a steady state of methadone and had been on the methadone program for some time. He was being prescribed medications for his anxiety and depression issues. He had been warned not to take Lorazepam and he was not prescribed this drug. He had also been warned multiple times by the social worker at the clinic or medical personnel not to drive if his abilities were impacted.

[88] Certainly, if an alcohol or drug addiction is connected to an offence and the offender takes concrete steps to deal with that addiction, that would be considered a mitigating factor. I cannot find that is the case here. The PSR writer notes that probation records indicate that Mr. Norris is “minimally suitable for future community supervision as the subject fails to seriously address his substance use and mental health issues.” She also indicates that Mr. Norris advised that he did not believe he required any further treatment or counseling for substance use.

[89] The Crown argues that it should be treated as an aggravating factor. I find that Mr. Norris had taken some steps toward dealing with his addictions prior to the collision including one stint in a rehabilitation program in 2013 and his involvement in the methadone program so I am not inclined to treat his ongoing addiction as an aggravating factor either.

[90] With that background, I turn to consideration of the aggravating and mitigating circumstances in this case. The presence of aggravating and mitigating factors is important in determining where a case falls on the spectrum of available sentences.

[91] There are a number of significant aggravating factors in this case. They include the following:

1. Mr. Norris chose to consume drugs not prescribed to him and to double dose on methadone that had been prescribed to him. He had in his car a large number of various medications, some prescribed and some not prescribed to him, in his center console as well as the methadone bottle he had just picked up on his passenger seat.
2. Mr. Norris had been “repeatedly warned” of the dangers of taking more medication than prescribed and to be aware of the risk of combining hypnosedative medications with Methadone. He was told not to drive or operate machinery when drowsy.
3. At the time and location Mr. Norris drove his vehicle, there were many other motorists who were put in actual and potential danger by his manner of driving.
4. After driving through the median and then back through the median, Mr. Norris chose to keep driving for another 7.1 km while swerving all over the road.
5. Mr. Norris killed one person and badly injured a second. The Kay’s were entirely blameless, and Mr. Kay took evasive action to avoid the collision. There was no evidence that Mr. Norris even braked.
6. The loss of Penny Kay has had a devastating impact on her remaining family.
7. Paul Kay continues to suffer mentally and physically, both from the loss of his wife and from the substantial back pain caused by the collision.
8. Mr. Norris has three prior convictions for driving while impaired. This is a significant aggravating factor that sets this case apart from many of the cases provided. One would have hoped that his prior convictions would cause Mr. Norris to be extra vigilant when it came to driving while impaired. They did not.

[92] There are important mitigating factors that I must consider. They include the following:

1. Mr. Norris made numerous admissions which considerably shortened the length of the trial from the original two weeks down to a couple of days.
2. Mr. Norris was employed for over 25 years as a garbage collector until his physical injuries prevented him from continuing in that job.
3. Mr. Norris has the support of his mother. He was described as a hardworking man by a former pastor.
4. Mr. Norris expressed remorse to the PSR writer and has some insight into the seriousness of his actions. This lack of full insight may be explained by his executive function impairment.
5. Mr. Norris suffers from long-standing anxiety and depression and subsequent to the offences had an infection that resulted in a mass being removed and he now has an acquired brain injury impacting on his executing functioning. He also has some lasting physical injuries as a result of the collision. He required a walker for his court appearances.

Conclusion

[93] Any loss of life caused by an impaired driver is tragic. In this case, the enormous loss of Penny Kay in lives of her husband, her children, and her grandchildren is immeasurable and never ending. One cannot imagine the horror of watching your wife of almost 50 years pass away before your eyes, all as a result of being out for a drive on clear fall day in the middle of the day. This tragic loss was entirely preventable and is the result of Mr. Norris’s decision to drive while his ability was impaired and to keep driving long past when that would have been obvious to him. If he was not aware earlier, he transversal through the 30 foot median should have been a wake-up call that he was not okay to drive.

[94] For as long as Mr. Norris has been alive, courts have warned about the consequences of impaired driving. Yet the message escaped him. It is important that it does not escape others.

[95] Mr. Norris’s degree of moral blameworthiness is significantly elevated by the fact that these are his fourth and fifth convictions for impaired driving.

[96] In my review of all the cases provided, including the ones I have summarized in my reasons, it is clear that even first-time youthful offenders, who plead guilty, are receiving sentences over and above the sentence sought by the defence in this case of 4 years. Mr. Norris does not have these significant mitigating factors.

[97] Where there is a criminal or significant driving record, as stated in Altiman, sentences in range of seven and half to twelve years are often being imposed. It is clear that there has been a trend toward higher sentences, and this is the message from Parliament with the passing of Bill C-46. Therefore, the Crown’s suggestion of ten years is not outside the appropriate range.

[98] Although denunciation and deterrence are paramount sentencing principles for offences such as these, rehabilitation and restraint are still to be considered.

[99] The most significant mitigating factor put forward by the defence is Mr. Norris's current mental impairment as a result of his acquired brain injury. Mr. Farrington submits that the court should focus on rehabilitation and not over-emphasize deterrence and denunciation.

[100] I think it is important to differentiate situations where an impairment pre-exists an offence and impacts on the moral culpability for that offence and one that occurs subsequent to the offence. I am mindful of the dicta in the cases of Young and Shahnawaz, that where the disability does not go to the offender’s moral culpability for the acts committed, it takes on less importance and that rehabilitation is about the offender’s re-instatement as a functioning and law-abiding member of the community and not about restoring his medical or mental heath.

[101] Mr. Norris’s current state must be taken into account as demonstrated in Riley, but even in that case with profound physical impairment, a sentence of 4 years was imposed. When one factors in the normal credit of time and a half for pre-sentence custody the sentence in that case was actually five years.

[102] As stated by the Court of Appeal in Shahnawaz, I must consider Mr. Norris’s current mental and physical state to ensure that the sentence imposed does not become disproportionate to the crime.

[103] The defence would suggest that a lower sentence is required because Mr. Norris will have a more difficult time during his sentence of imprisonment than others. While Dr. Lawrence’s letter speaks of Mr. Norris’s impairment and that he will require ongoing monitoring and support to assist him with some of the inherent challenges of daily living, no direct evidence was called about how his impairment would impact on his ability to serve a term of imprisonment or the hardship it would cause. I do not have evidence that the custodial facility will not be able to accommodate Mr. Norris’s needs.

[104] In other cases cited by the defence, there was direct evidence that the offender’s physical or mental impairment would make their term of imprisonment “very difficult” or “extremely difficult”. Although, in the Berman case, the trial judge found that due to the offender’s psychological make-up, prison would be extremely difficult and would affect him more than other individuals.

[105] It may be a matter of degree. From the evidence before me, I am prepared to infer that Mr. Norris would likely have a more difficult time in prison than someone without his disability. In the PSR, the two particular issues identified included the need to be reminded to take medication and assistance with meal preparation. It is likely that the facility could assist with those issues. However, it is not difficult to imagine that the impairment to his executive functioning which includes short-term memory issues, attention and concentration issues, an inability to problem solve, impulsivity and not learning from his mistakes may lead to conflict within the jail or exacerbate his pre-existing depression and anxiety disorders and cause a more difficult period of incarceration. Beyond that, evidence connecting his condition to the circumstances of his imprisonment including what programs are offered and what accommodations could be made would be necessary.

[106] When I consider the principles of sentencing, the recent case law, and the aggravating and mitigating factors present in this case, I conclude that a sentence of eight years is appropriate.

[107] In light of the nature of Mr. Norris’s driving on October 17th and criminal record for impaired driving, it is just and appropriate that he be prohibited from driving for life in addition to the period of imprisonment. The prohibition will be concurrent on all counts.

[108] Mr. Norris, please stand. I sentence you as follows:

On Count 4, impaired driving causing the death of Penny Kay, to eight years in the penitentiary;

On Count 2, dangerous driving causing death to Penny Kay, to six and a half years in the penitentiary to be served concurrently;

On Count 3, impaired driving causing bodily harm to Paul Kay, five years in the penitentiary to be served concurrently; and

On Count 1, dangerous driving bodily harm to Paul Kay, to four years in the penitentiary to be served concurrently.

[109] On Counts 1, 2, 3, and 4 there shall be a driving prohibition for life, commencing upon release from imprisonment.

[110] Given the financial and personal circumstances of Mr. Norris, I decline to make an order for a Victim Fine Surcharge.

[111] Mr. Norris, the sentence I have imposed is a significant one. I hope that you will continue to receive the assistance you require for your mental, medical and addiction issues while incarcerated. It is my hope that when you are released that you never drive a motor vehicle again and that you do what is in your power to lead a law-abiding life.

[112] To the members of the families present, I appreciate that neither my words today, not the sentence I imposed can bring back Penny Kay. Her loss is very real and will leave a permanent void. I sincerely hope that you are able to move on and heal.

“Justice P.J. Moore”

Justice P.J. Moore

Released: March 4, 2024

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.