Court File and Parties

Court File No.: CR-22-131 Date: 2024-06-18 Ontario Superior Court of Justice

Between: His Majesty The King And: Jesse Aron Bleck, Defendant

Counsel: Artem Orlov and Adam Campbell, for the Crown Brian Eberdt, for the Defendant

Heard: February 1 and May 28, 2024

Reasons for Sentence

TRANQUILLI J.

Introduction

[1] A jury found Jesse Bleck guilty of failing to stop at an accident that caused bodily harm to Tristan Roby and for driving while prohibited at the time of that incident.

[2] There was no dispute that a Nissan Altima struck 18-year-old Tristan Roby on the night of July 21, 2019. There was also no dispute that the driver of the Nissan Altima would have known that they had struck Mr. Roby but failed to stop to identify himself and to offer assistance to the catastrophically injured cyclist. The only issue during the five-week trial was the identity of the driver.

[3] Convictions are entered on one count of operating a motor vehicle and knowing or being reckless to knowing it was involved in an accident that resulted in bodily harm to Tristan Roby and failing to stop the vehicle, give his name and address, and to offer assistance, contrary to s. 320.16(2) of the Criminal Code and one count of operating a motor vehicle while prohibited from doing so, contrary to s. 320.18 of the Criminal Code.

[4] Sentencing submissions were heard on February 1 and then May 28, 2024. The hearing required more time than originally estimated due to evidentiary issues that arose with the pre-sentence report. Submissions were also unfortunately delayed and protracted due to incomplete disclosure of detention records and then counsel illness. I set today’s return date for my earliest available opportunity following the completion of submissions.

[5] The task for this court is to determine a fit and appropriate sentence. The positions of the Crown and offender are in stark contrast. The Crown seeks a global penitentiary sentence of five years with ancillary orders including a 10-year driving prohibition. Mr. Bleck seeks a conditional sentence order on terms of house arrest that would permit employment and tending to childcare responsibilities, followed by a period of probation and a five-year driving prohibition.

[6] These positions require the court to carefully identify, consider and balance the relevant and applicable sentencing principles and objectives in the circumstances of this case.

Circumstances of the Offence

[7] Tristan Roby and his best friend were cycling to Lambeth to go night fishing. They traveled westbound along Exeter Road at 11:00 pm on the evening of July 21, 2019. A silver Nissan Altima also traveled westbound on Exeter Road. The Altima struck Mr. Roby and threw the teen to the side of the road. The Altima was heavily damaged on its passenger side, with a dented hood, cracked windshield and damage to the passenger side quarter panel, bumper and sideview mirror.

[8] The Altima did not stop, but carried on westbound, with Mr. Roby’s bicycle wedged under the front passenger corner of the vehicle and the tire well. Tristan was left behind on the side of the road, with his best friend in shock as to what had happened. Sparks flew from the Altima as it continued to drag the bicycle away from the scene. An eastbound driver witnessed the collision, turned around and gave pursuit. The witness chased the Altima down to the driveway of the Casa Blanca motel, near the intersection of Wonderland Road South and Wharncliffe Road South, about 890 metres on from the point of impact with Mr. Roby.

[9] The eyewitness was unsuccessful in his attempt to apprehend the driver. The driver and an occupant abandoned the car in the motel driveway and fled the scene. The ownership of the vehicle proved controversial, but various pieces of evidence connected Mr. Bleck to the car and indicated he was the driver on the night in question. Police arrested Mr. Bleck for this incident in January 2020, after a six-month investigation.

[10] Mr. Bleck did not testify at trial and was not required to do so. To identify Mr. Bleck as the driver, the Crown relied upon an array of circumstantial evidence, eyewitness testimony of the incident, witness testimony of Mr. Bleck’s prior use of the Altima, and a KGB statement. A defence theory of third-party suspect or negligent police investigation became evident in cross-examination of witnesses. The jury heard evidence that a third-party acquaintance of Mr. Bleck’s came forward during the police investigation to confess that he was the driver at the time. He was not charged. The jury also heard from that witness at trial.

[11] It is evident from their verdicts that the jury found the Crown had proven beyond a reasonable doubt that Mr. Bleck was the driver of the Nissan at the time it struck Mr. Roby.

[12] A Criminal Code court order prohibited Mr. Bleck from operating a motor vehicle at the time of the July 2019 collision. With the jury’s finding the Crown had proven beyond a reasonable doubt that Mr. Bleck was the driver, the finding of guilt for driving while prohibited followed.

Circumstances of the Victim

[13] The exercise of fashioning a fit and appropriate sentence necessarily focuses upon the offender’s history and circumstances. But before turning to Mr. Bleck’s circumstances, I first note the impact of this offence on Mr. Roby and his family.

[14] Mr. Roby sustained extensive and catastrophic injuries that have changed his life and that of his family. Apart from the array of fractures, bruises, and lacerations, he sustained a serious brain injury that has left him wheelchair bound, dependant on attendant care for the most routine of daily activities and unable to communicate in a meaningful way.

[15] The court received statements from Mr. Roby, his mother, and his sister. These are filed as exhibits. I briefly summarize them for the record.

Tristan Roby

[16] As he is now unable to speak, Tristan’s mother Abby Roby delivered Tristan’s statement on his behalf. She shared photographs of Tristan’s life before this collision. She explained that she had worked with Tristan over the previous few years to prepare his comments.

[17] At the time of the collision, Tristan had a summer job and was looking forward to attending Lakehead University with his friends, where he would study entomology. That all changed with the collision, which he says “killed” him that evening. He is trapped in his body and must rely on others for all of his daily needs. He has no independence or dignity. He has no control over his body. He cannot walk or talk and relies on tube feeding. He lives with constant pain and discomfort. In the beginning, he saw small gains, where he stood and said a few words. But his condition has now deteriorated. He has a shortened life-expectancy, and has developed a Parkinson-like disorder, with seizures. His life, his dreams and relationships are lost. He is angry Mr. Bleck left him for dead and did not take responsibility for his actions. His care is costly, and he worries for his mother, who has not been able to work since the accident and who manages his daily care. He also worries for his friend Jack, who had the trauma of witnessing the collision.

Abby Roby

[18] Tristan’s mother Abby Roby described how she had looked forward to watching Tristan and his sister mature, finish studies and start families. Now her life is consumed with being Tristan’s daily caregiver and advocate. She suffers from PTSD, depression, and hopelessness from witnessing her son’s situation. She is unable to work. Her savings are gone, and she has ongoing worry about managing Tristan’s uncovered care expenses along with having money for food and rent. She lives with chronic stress, elevated blood pressure and has physically deteriorated from the daily physical care that she must provide Tristan.

Mackenzie Azevedo

[19] Tristan’s sister described that the whole ordeal of her brother’s injuries has broken her and their family. His constant care needs have strained her relationship with her mother. She is reluctant to discuss that impact with her mother as her mother has so much on her plate. She can see that her mother tries to keep a positive outlook but worries that it is taking a toll on her mental wellbeing.

[20] It is devastating for Mackenzie to see her brother unable to fully express himself. His bright future was changed in a flash. She lives with the constant strain of witnessing Tristan’s condition and worry about his hospitalizations for various complications. She has developed panic attacks, hair loss and eczema from the stress.

Comments Regarding the Victim Impact Statements

[21] The sense of the profound and devastating loss and the physical and emotional pain for Tristan and his family was palpable when these statements were delivered in this courtroom. It was difficult to witness. Their experiences and courage will not be forgotten by those of us who heard their words in this courtroom, but I recognize that Tristan and his family must carry on with the consequences of this tragedy no matter what happens here today.

Circumstances of the Offender

[22] Mr. Bleck’s relevant circumstances require consideration of his criminal record, convictions since being charged with these offences, his Ministry of Transportation record, information regarding his youngest child and his employment since these offences as well as his pre-sentence report. These documents were all filed as exhibits in this hearing.

[23] Mr. Bleck is 31 years of age, his date of birth being July 8, 1993.

Criminal and HTA Record

[24] His Ministry of Transportation record has four prior Highway Traffic Act convictions in 2014, 2015 and 2016 for driving while his licence was suspended and a conviction for operating a motor vehicle without insurance in 2016.

[25] His criminal record has a prior conviction in 2017 for failure or refusal to provide a breath or blood sample, at which time he was fined and prohibited from operating a motor vehicle for 12 months. In 2018, he was convicted with failure to comply with a condition.

[26] After his arrest, Mr. Bleck was twice arrested for being in breach of his release orders in respect of these offences. On one of those occasions, he was found operating a motor vehicle while prohibited.

[27] He was first arrested while on release in December 2021 for driving while prohibited contrary to s. 320.18 of the Code and operation of a motor vehicle in breach of a release condition. He entered a guilty plea to these offences in February 2023. On a joint submission, 80 days of pre-sentence custody on these offences was attributed to those offences. Sentence was deemed served on an enhanced credit of 120 days, with a 12-month driving prohibition.

[28] In December 2022, he was again arrested for being in breach of a release condition, this time, in failing to remain in his residence, with specific exceptions and while in the presence of his surety. He was located through his ankle monitor as the passenger in a vehicle being operated by a person who was not his surety. In March 2023, he entered a plea of guilty on this offence. On joint submission, 20 days of pre-sentence custody, again on these offences, was attributed to this offence. Sentence was deemed served on an enhanced credit of 30 days.

CAS Correspondence

[29] Mr. Bleck is the father of three children by three separate women. CAS reports that since, 2023, Mr. Bleck has been the primary caregiver to the youngest, his two-year old son. This was initially under CAS supervision; however, CAS closed its file in January 2024, deeming the child to be safe in Mr. Bleck’s care.

Employment

[30] A letter of January 19, 2024 from the proprietor of Carollee’s Cleaning advises that Mr. Bleck has been employed with her since September 2023, where he works 40 hours a week. The court understands the employer is his aunt. This information is somewhat discrepant with his report as to his employment status in his pre-sentence report.

[31] As I shall now review, the pre-sentence report is the source of some controversy that I must resolve.

Pre-Sentence Report

[32] A pre-sentence report was prepared by probation and parole officer Michelle Parker. Her report dated December 10, 2023 raised themes of anti-social thinking and behaviour. Mr. Bleck challenged the accuracy of her report, and she was required to testify at the sentencing hearing.

[33] I will first summarize the salient report highlights and then the officer’s testimony.

(a) The Report

[34] The probation and parole officer interviewed Mr. Bleck and his mother.

[35] Mr. Bleck was raised by his single mother. His mother was raised on an indigenous reservation; however, he knew nothing of their history. He has no memory of his father. He has a close relationship with his mother but has had issues with his mother’s partners. His brother passed away from a drug overdose in 2020. This was difficult for Mr. Bleck and his mother.

[36] He was undereducated and underemployed. He said he was diagnosed with attention deficit hyperactivity disorder as a child and was medicated from a young age. He did not like the school rules and was defiant. He did not go to high school beyond grade nine. His issues with the school system continue. He was banned from his son’s school due to challenging another child for picking on his son.

[37] He said he had not worked in at least 3 years. He had previously worked in construction, often for friends. He blamed the police for ending his employment with his arrest on these offences. He claimed his bail conditions continued to deny him the ability to work.

[38] He maintained that he is not guilty of these offences and plans to appeal the convictions.

[39] He shared that he been caught driving without a valid driver’s licence more times that he can count. According to the report author, Mr. Bleck described an attitude of defiance of authority. He referred to himself as “heartless”. He had no feelings since his brother had passed and since being charged with these offences. He believes that he lives in a free country and will not be told what to do. He has little interest in working within rule structures and does not have respect for anyone who tells him what to do. Police are useless and correctional officers are those who failed at being police. No system in Canada has value unless you are female, which will permit women to get away with anything.

[40] His mother confirmed Mr. Bleck always struggled to manage rules and that he had behavioural challenges from an early age. She was uncertain as to what drove his discontent with rules and governing systems, apart from his ADHD and impulsivity. She thought counselling could help to deal with grief regarding the loss of his brother, and other personal issues.

[41] The author reported Mr. Bleck was previously supervised on a 12-month probation order for provincial offences. She concluded he was superficially compliant. He met minimum reporting requirements but would miss appointments and would only avoid a report by reengaging with probation before enforcement was taken. It was noted these charges were incurred during this supervision period. His supervising officer’s impression on that term of probation was that Mr. Bleck was resistant to change and engagement in meaningful supports. He lacked pro-social connections and denied accountability for his actions. Ms. Parker reported that his associates are pro-criminal and only perpetuate his anti-social thinking. His mother reported one positive friendship that encouraged her son to make different choices.

[42] The author expressed concern about Mr. Bleck’s ability to be compliant with probation. His history showed defiance of all forms of authority and a lack of meaningful engagement with probation services in the past.

(b) The Officer’s Testimony

[43] Officer Parker was challenged on the accuracy of her reports of Mr. Bleck’s negative comments and her findings about his attitudes and belief systems. With reference to her notes and her independent recollection of the interview, she confirmed the accuracy of Mr. Bleck’s statements as set out in her report.

[44] She testified she was limited in her ability to gather collateral information about Mr. Bleck. He would only offer his mother and told the officer that no one that he knows would want to speak with her. He would not give her his telephone number, saying it had been used against him at trial. He would not give her past employer details. She left her contact information with Mr. Bleck should he want to offer any further information; however, he never called.

[45] She was challenged on the accuracy of the information in her report about parenting arrangements for Mr. Bleck’s youngest child. She had understood that none of his children were in his full-time care. Mr. Bleck’s mother told her that custody of his youngest child was going back and forth between her and her son on a week about basis. However, reports from about this time indicate the agency considered that Mr. Bleck was his son’s full-time caregiver. Ms. Parker did not question the accuracy of the CAS report. She explained she could only rely on what he and his mother told her. In any event, she said any correction to that issue did not change her overall findings and recommendations. In particular, she made no negative findings about him as a parent, and she recognized it was important to Mr. Bleck to be a good parent.

[46] She was challenged on her comment about Mr. Bleck’s pro-criminal associates. She noted Mr. Bleck was unwilling to share the names of his friends and that they would not want to speak with her. She explained that she knew Mr. Bleck’s deceased’s brother through her office as well as one of the other individuals who was in the car on the night of this incident.

[47] The basis for her conclusion as to Mr. Bleck’s “superficial compliance” with his previous probation order was questioned, since his only requirement was to report for meetings as required. The officer explained Mr. Bleck failed to attend five meetings. He maintained contact after the missed meetings and so avoided a breach report. When he did attend for meetings, her colleague’s notes indicated he did not meaningfully engage or provide information, such as details about his employer. This was consistent with her own experience with him in their single interaction for the report.

[48] The officer testified she had a colleague specifically review her report because of the wording or tone, her findings as to Mr. Bleck’s attitudes, and her recommendations.

(c) Analysis

[49] I am urged by Mr. Bleck to consider the report writer’s comments about Mr. Bleck’s custody of his youngest child are an error that fundamentally undermines the balance of her report. In particular, I should have doubts about the accuracy of her report about his comments about negative and defiant attitudes towards rules and authority, his association with pro-criminal peers and her conclusions about his “superficial compliance” with supervision.

[50] I do not accept this submission and find that the contents of Ms. Parker’s report have been established to the requisite degree required by s. 724 of the Code. I am not convinced this information regarding Mr. Bleck’s custody of the child was an error, or if it was, that it was a material error. The correct and precise details as to custody of his youngest child and CAS involvement were within the knowledge and control of Mr. Bleck and his mother. Ms. Parker testified as to the challenges in eliciting collateral detail from Mr. Bleck. Her understanding at the time of the interview was that Mr. Bleck was sharing custody or caregiving responsibility with his mother. CAS’s report in September 2023 that he was the primary caregiver is not necessarily a reflection of how caregiving may have been shared with his mother on a practical basis. In any event, Ms. Parker also explained this was not a significant detail and did not affect her overall assessment.

[51] Ms. Parker testified in a forthcoming and direct manner. She had independent recollection of her interview with Mr. Bleck and preparation of the report, particularly given his memorable presentation of defiance. Her notes from their meeting added further details and examples of his negative attitudes that she omitted from the report. She took care in having a colleague review the report because of these factors and her conclusions.

[52] I also agree with the Crown’s submission that Ms. Parker’s report regarding Mr. Bleck’s attitude is entirely consistent with his prior driving record and criminal record, which also shows a pattern of a negative attitude to authority and rules.

Pre-Trial Detention Records & Release Documentation

[53] Mr. Bleck’s pre-trial detention records from Elgin Middlesex Detention Centre and Maplehurst Correctional Complex were also entered as exhibits. He has 176 days of unused pre-trial custody available for an enhanced Summers credit, or 264 days.

[54] During his time at EMDC, Mr. Bleck was subject to 13 partial institutional lockdowns due to staff shortage, and six partial lockdowns for unit discipline. Records also show he was triple-bunked in a cell designed for two on several occasions, one lasting for several weeks. On one occasion, four were bunked in a cell for two days.

[55] At Maplehurst, he was triple-bunked for 55 of the 81 days he spent in custody there. He was also subject to 21 occurrences of full lockdowns and six occurrences of partial lockdowns.

[56] Release documentation shows that he was released in March 2020 on consent, with terms that permitted him to attend work and the Pathways Skills Development Program. He was subject to a new release order in September 2020 after charges for condition breaches. Those terms still permitted him exceptions, including attendance at Pathways Skills Development Program. The release order was varied on consent in November 2020 on the representation that he had a job opportunity and would be unable to attend work with the terms of the order. In April 2021, the terms were further varied on consent to impose a curfew instead of strict house arrest. In March 2022 he was released after the charges on condition breaches and driving while prohibited. House arrest was reimposed, with exceptions including for attending counselling.

Mr. Bleck’s Statement to the Court

[57] Mr. Bleck was given the opportunity to speak to the court before I determined the sentence to be imposed. His counsel advised that this had been a very emotional case for all involved. Mr. Bleck was always nervous in front of crowds and was reluctant to address the court himself but had authored a brief letter which his lawyer read to the court. That letter is an exhibit in this hearing.

[58] His counsel expressed that although Mr. Bleck maintains his innocence, he was sorry for the life impacts this has had and will continue to have for Tristan and his family for the rest of his life. Mr. Bleck’s primary motivation is being the best father to his children. A jail sentence would make it impossible for him to be there for them and to support them. He has learned a lot from this tough process and would abide by all rules and conditions if the court imposed a conditional sentence with house arrest, which would allow him to be there for his children. He respects the court’s judgment no matter my decision.

Positions of the Parties

[59] The Crown seeks a custodial sentence of four (4) years for the failure to stop and a one (1) year consecutive sentence on the drive while prohibited, for a global penitentiary sentence of five (5) years. The Crown also seeks ancillary orders including a 10-year driving prohibition to take effect after his current driving prohibition ends. The Crown concedes that it could not find a reported decision that imposed a four-year sentence; however, Mr. Bleck’s degree of moral blameworthiness and the increase in the maximum sentence on the failure to stop offence signals Parliament’s intention to impose harsher consequences for this offence support this position. In addition, the circumstances of this offence, Mr. Bleck’s relevant history, and his bleak prospects for rehabilitation give the principles of denunciation and deterrence priority in sentencing.

[60] Mr. Bleck seeks a conditional sentence order in the range of eighteen (18) to twenty-four (24) months on terms of house arrest permitting employment and childcare responsibilities, followed by probation of two (2) to three (3) years and a five (5) year driving prohibition. He submits that precedent demonstrates a sentence of less than two years and therefore a conditional sentence is within range of outcomes for an offence of this nature. Such a sentence still addresses principles of denunciation and deterrence. He will have already spent the equivalent of near to nine months in custody when his time served is enhanced with the Summers credit. He is also entitled to further mitigation by way of Duncan and Downes “credits”. He should therefore qualify for a conditional sentence with such terms as the court may require, such as ongoing GPS ankle-monitoring.

[61] The parties agree there are 176 unused days of pre-trial custody, enhanced to 264 days for a Summers credit. However, the Crown disputes Mr. Bleck’s submission for further reductions by way of a Duncan credit for harsh pre-trial custodial conditions and a Downes credit for house arrest conditions. There is no specific evidence of the impact of the detention conditions upon Mr. Bleck beyond general information as to lockdowns and cell arrangements. As to his conditions of house arrest, the Crown consented to variations on several occasions to permit Mr. Bleck to seek employment or counselling. He never availed himself of those ostensible opportunities, as is evident from his pre-sentence report. The only employment mentioned is that afforded by a relative since September 2023, following his conviction on these offences. Moreover, the revocation of privileges during his house arrest, such as being permitted to leave the residence for employment were a direct result of his breaches of conditions, which warranted use of the ladder principle. Finally, neither of these factors can be used to so reduce the sentence as to make it unfit in the circumstances.

Principles of Sentencing

[62] The Criminal Code sets out the purposes, objectives and principles that must guide this court in determining a fit and appropriate sentence for these offences.

[63] The fundamental purpose of sentencing is to impose sanctions to protect society, to contribute to respect for the law and the maintenance of a just, peaceful, and safe society: s. 718 of the Criminal Code.

[64] A sentence should fulfill one or more of the following main objectives: denunciation, deterrence, separation of the offender from society where necessary, rehabilitation, responsibility, and acknowledgement of harm: s. 718 (a)-(f) of the Criminal Code.

[65] The Code also directs the court to consider several principles when determining a fit sentence. Fundamentally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code.

[66] The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to review the aggregate sentence and consider whether it is just and appropriate. The court must ensure that the cumulative sentence does not exceed the overall culpability of the offender. An offender should also not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances: s. 718.2 (b), (c), (d) of the Criminal Code.

[67] A sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances: s. 718.2 of the Criminal Code.

Analysis

[68] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by defined objectives in the Criminal Code, it still involves the exercise of the court’s broad discretion in balancing all the relevant factors: R. v. Lacasse, 2015 SCC 64, at para. 1.

[69] Failing to remain at the scene of a collision has been treated as an extremely serious crime requiring emphasis of general deterrence: R. v. Porter, 2017 ONSC 6582 at paras. 10-12.

[70] The deterrent quality of the sentence for this crime must be given paramount consideration. It emphasizes community disapproval of this reprehensible act. General deterrence requires a sentence which will influence drivers not to leave the scene of an accident. To that, I would also observe that it interferes with the due administration of justice. The failure to stop exhibits a grave failure to meet the standards of humanity and decency. Drivers should know that they cannot avoid responsibility by fleeing the scene and refusing to cooperate with authorities. They gain nothing from leaving the scene except the condemnation of society. The court must communicate the message that the courts of this country will not tolerate the failure to remain at the scene, irrespective of fault for the collision, and the failure to discharge the duties required by the Criminal Code: R. v. Gummer, 1983 ONCA 5286 at paras. 15-16; Porter, at para. 47.

Aggravating Factors

[71] I first turn to aggravating and mitigating circumstances arising from Mr. Bleck’s personal circumstances.

[72] His recent and relevant Highway Traffic Act and criminal records of related driving offences are aggravating. These include multiple instances of driving while suspended between 2014 and 2016 and then moves to a criminal conviction a year later in 2017 for failure to provide a breath or blood sample and then breach of a recognizance in 2018. I have not considered his post-offence conviction for driving while prohibited as an aggravating factor.

[73] In imposing a sentence for knowing that the accident caused bodily harm and failure to stop, the Code requires the court to consider as an aggravating factor the fact that he was not permitted to operate the vehicle by law at the time: s. 320.22(g).

[74] The Crown also submits that a further statutory aggravating factor is the evidence that the offence had a significant impact on Tristan, considering his age and other personal circumstances, including his health and financial situation: s. 718.2(iii.1). The consequences of the collision have undoubtedly wrought tragic and devastating impacts on Tristan and his family. However, I remind myself that the offence in issue is Mr. Bleck’s knowledge that he struck Tristan and failure to stop to render assistance. The offence is not with respect to any finding of fault for having caused the devastating injuries.

[75] The court acknowledges that Mr. Bleck’s flight and continued evasion from police added further unimaginable anguish to the Roby family’s trauma. However, I note the act of abandoning the victim of a collision is part of the constituent offence and would therefore not normally be an aggravating factor for the purpose of sentencing. The court has recognized there may be situations when the offender’s conduct in leaving the scene could be an aggravating factor: R. v. Vanasse, 2016 ABCA 329 at para. 19. In my view, rather than addressing this as one of those situations, Mr. Bleck’s conduct in leaving the scene is best addressed in assessing the gravity of the offence and the degree of his responsibility.

Mitigating Factors

[76] Mitigating circumstances are a challenge to identify but still present in these circumstances. Mr. Bleck is relatively youthful, at thirty-one years of age. He is a father to three children and a primary caregiver to his youngest child. He has the support of his mother. Although not strictly a mitigating factor, I pause here on the issue of his children to recognize the collateral consequences, particularly for his youngest child, if he is to be incarcerated.

[77] I have not lost sight of the claims for Duncan and Downes credits. The Duncan credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the Summers credit will be deducted: R. v. Marshall, 2021 ONCA 344 at para. 52. Similarly, time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. The amount of credit will depend on factors including length of time spent on house arrest, stringency of conditions, impact on liberty and ability to carry on normal relationships, employment, and activity. The offender should supply the judge with information as to the impact of the conditions: R. v. Downes, 2006 ONCA 3957 at para. 37.

[78] Mr. Bleck did not offer evidence of the direct impact of the pretrial detention conditions upon him. The records do show lockdowns and triple-bunking. I accept, as has been recognized by the Court of Appeal, that some impact from the general information as to lockdowns and cell capacity is self-evident from this information: R. v. Bristol, 2021 ONCA 599.

[79] Mr. Bleck did have stringent bail conditions amounting to house arrest. However, it is of note that exceptions were made on consent to permit him to work and seek employment counselling and there is no evidence that he ever availed himself of those opportunities and, in fact, he offered no evidence of the impact of those conditions as was recommended in Downes. Nevertheless, there were restrictions on his movements, with house arrest subject to specific exceptions and the use of GPS ankle monitoring, over a prolonged period.

[80] As a result, I am persuaded that both factors should be considered as mitigating circumstances in fashioning an appropriate sentence.

The Appropriate Sentence

[81] Mr. Bleck carries a high degree of moral blameworthiness for his conduct. With this offence, there is a continuum of culpability in cases where an offender involved in an accident fails to stop to offer assistance. At the one end there are offenders who react out of momentary panic or an error in judgment and then take responsibility. At the other end of the spectrum are offenders who act with callous disregard and deception: Vanasse, at para. 24. Mr. Bleck’s cruel and cowardly conduct falls at the high end of the spectrum of moral blameworthiness. This was not a momentary lapse in judgment where he soon thought better of his conduct and returned to the scene or later turned himself in. He left the scene while being pursued by a witness, with Mr. Roby’s bicycle lodged under his vehicle, and as fairly characterized by his family, he left Mr. Roby for dead. He continued that flight when he abandoned his badly damaged car, resisted apprehension by a witness, and fled on foot. Thereafter, he continued his calculated and prolonged attempt to avoid responsibility over the next six months until his arrest, knowing all the while about Mr. Roby’s catastrophic injuries, the active police investigation, and Tristan’s family’s unanswered questions about what happened on Exeter Road that night and who was involved.

[82] The degree of his moral blameworthiness is reinforced and aggravated by the fact that he chose to drive despite being prohibited. He is prepared to drive despite prohibitions and then to flee in order to avoid apprehension. The principles of denunciation and general and specific deterrence are all engaged in this assessment of a fit and appropriate sentence: R. v. Day, 2019 ABCA 103, at para. 6.

[83] The conviction for causing bodily harm with a motor vehicle and failing to stop carries a maximum term of imprisonment of 14 years: s. 320.2(a) of the Criminal Code. The conviction for driving while prohibited carries a maximum term of imprisonment of 10 years: s. 320.19(5)(a) of the Criminal Code.

[84] I note that these are meaningful increases since the 2018 Criminal Code amendments to “conveyancing” offences. The legislative trend for this type of offence over the last approximate 20 years has been to increase the maximum term of imprisonment. Before these current amendments, the maximum term of imprisonment under the predecessor section, s. 252, was 10 years. Before 1999, the maximum term of imprisonment was two years. A decision by Parliament to increase maximum sentences for certain offences shows that Parliament wanted such offences to be punished more harshly and that these offences are to be treated as more grave than in the past. An increase in the maximum sentence should be understood as shifting the distribution of proportionate sentences for an offence: R. v. Friesen, 2020 SCC 9, at paras. 99-100.

[85] I have carefully considered whether less restrictive sanctions than the deprivation of Mr. Bleck’s liberty are appropriate. I find that a conditional sentence is not appropriate in the circumstances of this case for three reasons.

[86] First, as just reviewed, the increase in the maximum penalty signals Parliament’s intention that this crime be treated more harshly, such that there is a shift in the distribution of the sentence. As I will explain, I conclude that the sentencing principles and objectives engaged by the circumstances of this case put the fit sentence beyond a range of less than two years.

[87] Second, and in any event, of whether the sentence is less than or greater than two years, I find that permitting Mr. Bleck to serve the sentence in the community would be inconsistent with the pressing objectives of denunciation and general and specific deterrence that require incarceration. As in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society: Lacasse, at para. 6.

[88] Third, I am not satisfied that a conditional sentence would not endanger the safety of the community: R. v. Proulx, 2000 SCC 5, at paras. 65-76. He was driving while prohibited at the time of this offence. He repeated this offending behaviour again while on release. The availability of a conditional sentence is influenced by the ability of an offender to comply with a court order: R. v. Avansi, 2023 ONCA 547 at para. 6. His attitude to court orders presents a danger to the public: R. v. Day, 2019 ABCA 103, at para. 6. Mr. Bleck’s record and his attitude towards authority and accountability does not engender my confidence. In addition to his record, his pre-sentence report shows an entrenched attitude of disobedience and defiance, and he does not believe the rules apply to him. The gravity of the damage that could ensue in the event of re-offence is also of concern, with the risk of injury and economic loss to members of the public.

[89] I have not lost sight of the sentencing objective of rehabilitation. I am not prepared to conclude, as urged by the Crown, that Mr. Bleck has no rehabilitation potential. His age and his responsibilities to his young family and his mother’s support offer some hope for rehabilitation. His apology read in court suggests he is now open to rehabilitation and is beginning to gain some insight. I hope this is true. I hope that this is a genuine and sincere intention. Nevertheless, his pre-sentence report gives serious reservation to his readiness for rehabilitation. He apparently has not been gainfully employed until recent months, despite previous representations made to the court that he was seeking employment and accommodations being made on his release terms for work and employment counselling. The pre-sentence report demonstrates a defiant and anti-social attitude, with a view that rules do not apply to him. His further convictions while on pretrial release on these offences, being a conviction for driving while prohibited and further breaches of release conditions reinforce the concern about his current readiness for rehabilitation and his willingness and ability to abide by conditions. Accordingly, hope for his prospects of rehabilitation are recognized but are secondary to the objectives of denunciation and deterrence.

[90] In summary, Mr. Bleck has a relevant record of recent and prior driving offences and a disregard for court orders. The paramount objective of general deterrence and the need for specific deterrence and denunciation require that he be separated from society to protect the public: R. v. Versnick, 2016 ONCA 232.

[91] This brings the court to the appropriate sentencing range.

[92] Both Crown and defence submitted case briefs that illustrated the variable nature of the sentencing range for these offences. Predictably, none of the decisions exactly align with the individual circumstances of this case and several of them involved guilty pleas, no prior criminal record, and an offender of otherwise previously good character. Further, these decisions cover a wide range of years, between 1983 and 2017, through which the maximum sentence for this offence has evolved upward. With one exception that I will address, all pre-date the legislative amendments that increased the maximum penalty to 14 years.

[93] The decisions submitted by the Crown illustrated sentences at the low end of six to 12 months incarceration and in more recent years, an average of two years. Locally, in a 2014 unreported decision of then Justice Leroy, in R. v Vanlieshout, is instructive. The court accepted a joint submission for three years custody on a failure to stop. Counsel in that case advised the court their position was higher than any reported decision they could identify, with the typical range being two years, but submitted the range was appropriate because of the egregious circumstances of that case. Like the situation here, the victim suffered devastating injuries, the offender fled in outrageous circumstances and had a relevant prior record. However, unlike this case, that offender entered a guilty plea, and the sentence was a joint submission.

[94] I have reviewed the decisions submitted by the Defendant. With one exception, all the decisions relied upon by Mr. Bleck for sentences less than two years again predate the legislative amendments and are distinguishable from this offender’s circumstances. The facts in those decisions generally involved a varying constellation of mitigating circumstances such as a guilty plea and expression of remorse, no prior record, a pro-social history, no breaches on bail. One decision, R. v. Creft, 2022 ONCJ 572, does arise within the context of the legislative increase to the current maximum term of imprisonment. A nine-month conditional sentence for dangerous driving causing bodily harm and a three-month consecutive sentence for failing to remain were imposed. However, again, that case is distinguishable. The Crown elected summarily, and mitigating factors included that the offender entered a guilty plea, expressed remorse, had a pro-social history and no prior criminal record.

[95] Let me be clear that Mr. Bleck’s exercise of his right to require a trial on these offences has no role in my assessment of sentence. The point is that unlike the cases relied upon for a limited custodial sentence, there is no mitigating factor of a guilty plea.

[96] In my view, in the circumstances of this offence and offender, and Parliament’s signal that sentences for these offences must increase, the appropriate starting range for this offence is now between three and five years, recognizing that ranges are not meant to serve as a straitjacket to a sentencing court.

[97] I now turn to the appropriate sentence for driving while prohibited in these circumstances. As previously noted, the maximum term of imprisonment for driving while prohibited is 10 years. The Crown proposes a one-year custodial term, to be served consecutively. In my view, the Crown could reasonably have sought a two-year sentence on this offence, given the recent and relevant prior driving record for driving while suspended and breach of a condition. However, totality also needs to be considered.

[98] The sentence for driving while prohibited should also be served consecutive to the sentence on the failure to stop. While both offences arise from or are connected to the same incident, they each reflect different legally protected interests. The offence of failing to stop imposes a duty on a driver involved in a collision to remain at the scene irrespective of fault. The offence of driving while prohibited arises from the offender’s conscious breach or defiance of an order or legal directive. Such rules and orders are meant to be followed and are essential to a just, peaceful, and law-abiding society: Gummer, at para. 13.

[99] I follow the method outlined by the Court of Appeal for the application of the totality principle when imposing consecutive sentences: R. v. Jewell, 1995 ONCA 1897 at pp. 14; R. v. Milani, 2021 ONCA 567 at paras. 37-38. The court must first identify the gravamen of the conduct giving rise to all the offences, determine the fit and appropriate sentence to reflect the gravamen of the overall conduct, and then determine the sentence for each offence.

[100] The Crown’s proposed sentence of five years, being four years for failure to stop and one year consecutive for driving while prohibited, is within an appropriate global range. However, the court must consider the totality. The Crown’s position also takes no account of relevant mitigating circumstances, including conditions of pre-trial detention and strict house arrest and is based on there being no hope for rehabilitation.

[101] Taking into account the high degree of moral blameworthiness for both offences, the aggravating and mitigating factors, the paramount factors of denunciation and general deterrence, the need for specific deterrence and separation from society, with some hope for rehabilitation as a secondary consideration and the principle of totality, I find the fit and appropriate sentence is a global term of imprisonment of 54 months, or four and ½ years.

[102] Mr. Bleck, please stand:

a. You are sentenced to a global term imprisonment of four and ½ years which is apportioned as follows: i. Count 1 – failure to stop pursuant to s. 320.16(2) – three years and 8 months, or 44 months; ii. Count 2 – driving while prohibited pursuant to s. 320.18 – 10 months, consecutive to Count 1. b. From this, Mr. Bleck you are entitled a credit of 176 days of unused pretrial custody, enhanced at 1.5:1, for a total of 264 days. This reduces your global sentence to forty-five months and 13 days, or three years, nine months, and 13 days. The court is prepared to review the calculation of this credit at counsel’s request. c. Mr. Bleck, you will also be subject to a 10-year driving prohibition on the offence of failure to stop (320.13(2)) and five-year driving prohibition on the driving while prohibited, concurrent to the driving prohibition on count 1. This is justified by your relevant and recent driving and criminal record, the circumstances of the offence, your defiance of court orders and the danger to the public: Versnick, at para. 3. These driving prohibitions are consecutive to the prohibition(s) already in effect. d. A secondary DNA order is made as s. 320.16(2) as a secondary offence; and e. A non-communication order is made pursuant to s. 743.21 of the Code in respect of Tristan Roby, Abby Roby, and Mackenzie Azevedo. f. In the circumstances, the victim surcharge is waived.

[103] I am acutely aware this sentence is unlikely to bring great comfort to Tristan and his family in their daily reality and their unimaginable pain and trauma. The court must impose a sentence that is consistent with the objectives that I have reviewed and the offences for which he has been convicted. Nevertheless, I hope it will help in bringing some closure to these very difficult years that have passed since that terrible night on Exeter Road.

[104] Mr. Bleck, this is your chance to begin a new chapter. Please, do not squander this opportunity. It is my hope that you will use this time in custody to access supports that will assist in your rehabilitation, such as counselling, skills training, and a high school education, that will assist you in a successful return to society as a contributing member and a role model for your family.

Justice K. Tranquilli

Released: June 18, 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.