The accused was leaving work at night in his car. The victim, who was a security guard at the accusedâ€™s workplace, appeared suddenly in front of the accusedâ€™s car.Â The victim was wearing only dark clothing, and was struck by the car as it was leaving the workplace parking lot. The accused stopped briefly, but then pulled his car out of the parking lot, turned around, and returned to the lot. While the accused was returning to the scene, a tractor trailer backed out of the same driving where the victim was lying injured, but not dead. The victim was caught under the wheels of the tractor trailer and was killed.
At trial, although the jury accepted that the initial accident was the accusedâ€™s fault, they found him blameworthy for failing to stop. The jury found that the accused meant to leave the scene of the accident in order to escape responsibility for hitting the victim. The jury found the accused guilty of failing to stop, criminal negligence causing death, and manslaughter.
In determining the appropriate sentence, the judge considered a presentencing report which demonstrated that the accused had a low likelihood of reoffence. He had no prior criminal record, had a lot of support from his family and showed himself willing to comply with any conditions placed upon him. The judge also found that his intent to harm was very low in the circumstances of the accident. Because the accused was not a citizen of Canada, he would be deported if the sentence was six months or more.
The judge imposed a sentence of six months less a day, followed by 18 monthsâ€™ probation.
Ontario Superior Court of Justice
Heard: January 7 and March 3, 2016.
Judgment: March 30, 2016.
Court File Nos.: [Redacted]
Between Her Majesty the Queen, and [Redacted]
Statutes, Regulations and Rules Cited
Criminal Code, s. 220(b), s. 236(b), s. 252(1.2), s. 487.051(4), s. 718, s. 724, s. 743.21
[Redacted], for the Crown.
[Redacted], for the Accused.
REASONS FOR SENTENCE
1 In the early morning hours of December 14, 2011, [Redacted] was leaving work to go home. [Redacted] was a security guard at the workplace. He appeared from the darkness wearing only dark clothing and was struck by [Redacted]'s car. [Redacted] fell to the ground.
2 The accident was not [Redacted]'s fault.
3 [Redacted] stopped his car, and after a few seconds he continued to drive. He turned his car around 20 to 25 seconds later. He was back in the parking lot where the accident took place in under 1 minute. Tragically, within that time, a tractor trailer reversed up the driveway, killing [Redacted].
4 [Redacted] elected to proceed by way of trial by jury.
5 The jury convicted [Redacted] of
a.Â Â failing to stop his vehicle, give his name and address or offer assistance, after being involved in a motor vehicle accident with a pedestrian, [Redacted], knowing that [Redacted] was suffering bodily harm and with the intention of escaping civil or criminal liability contrary to section 252(1.2) of the Criminal Code, R.S.C. 1985, c. C-46;
b.Â Â manslaughter contrary to section 236(b) of the Criminal Code, by committing an unlawful act that caused the death of another; and
c.Â Â criminal negligence causing death contrary to section 220(b) of the Criminal Code by failing to do something it was his duty to do, and in doing so, showing a wanton or reckless disregard for the life or safety of another person.
6 I must therefore sentence [Redacted]. In so doing, I considered the evidence regarding these offences, the circumstances of this offender, and the victim impact statement. I also reviewed the legal principles and the extensive list of cases provided by the parties, which the parties suggest, involve like offences and like offenders. In arriving at my conclusion, I applied the legal principles to the unusual circumstances in this case.
2. THE EVIDENCE REGARDING THESE OFFENCES
7 The following summary of material facts set out at paragraphs 8 to 27 below was read to counsel, and they agreed that it is accurate and complete:
8 On December 13, 2011, [Redacted] went to work. He worked an extra-long shift, from 14:00 to midnight at the request of his employer. At 12:15 a.m. on December 14, 2011, [Redacted] left work. His car was in good working order, he was not impaired and he drove at low speed. It was late at night and the roadway in the parking lot was dimly lit.
9 At 12:17:55, as [Redacted] drove down the west lane way, [Redacted], a 69-year-old [Redacted] security guard, came suddenly out from the left side of the lane way.
10 [Redacted] did not know [Redacted]. [Redacted] was dressed in dark clothing and wore no reflective gear. [Redacted] said he did not see [Redacted], and the expert in accident reconstruction agreed that [Redacted] did not likely see [Redacted] before [Redacted]'s car struck him.
11 [Redacted] fell onto the hood of [Redacted]'s car and then onto the ground slightly to the front and right of [Redacted]'s car.
12 [Redacted] acknowledged that he knew his vehicle had collided with a human being as he saw his limbs moving on the ground.
13 The accident was not [Redacted]'s fault.
14 According to the accident reconstruction expert, [Redacted] was injured but was likely still alive after this collision.
15 [Redacted] stopped his car for a few seconds and then drove away at 12:18:01. About 20 to 25 seconds later, [Redacted] returned to the scene and arrived back less than a minute after his car had collided with [Redacted].
16 Tragically, within that intervening minute, [Redacted] was killed. At 12:18:20, twenty seconds after [Redacted] left the scene, [Redacted]'s body began to be dragged by the tractor trailer that drove in reverse up the laneway.
17 Although employees had requested reflective gear from their employer, [Redacted] did not equip their security guards with reflective gear until after this incident. Moreover, although the truck made a beeping sound while it was in reverse, the sound could not be heard at the back of the trailer due to the surrounding sound of the factory.
18 At 12:21:40, the truck driver came back to see what was wrong and found there was a person under the passenger side back wheels of the trailer.
19 Upon re-entering the parking lot, [Redacted] was told a trailer had just backed up. [Redacted] told his co-worker, [Redacted], that he came back because he forgot something in the office. [Redacted] parked his vehicle and walked over to the scene but did not see the person any more. He went inside the building to see if the person was there, but he was not, so [Redacted] went right back out. As he was walking, the truck driver yelled, "There's a man. Call 911."
20 [Redacted] ran southbound toward the office with the truck driver. They went to see the supervisor to tell him that something was wrong. The supervisor told [Redacted] to light up the area with his car lights, and he did.
21 [Redacted] was pronounced dead at the scene at 12:42.
22 The truck driver said that he heard someone say something to the effect of, "You killed him." He did not recall who said this to him or whether it was before or after the 911 call was made or EMS arrived.
23 The next day, a police investigation began. Among other things, there was an extensive review of video footage in and around the area.
24 Upon his arrest at 21:00 on December 14, 2011, [Redacted] was asked for the first time and told police that his car had collided with the victim before he was hit by the tractor trailer. According to police, [Redacted] was at all times cooperative.
25 [Redacted] speaks little English and testified through an interpreter. [Redacted] said that although he knew his car had hit someone and this person was on the ground, he left. He said he did not intend to flee but was in a state of panic and it took him 20 to 25 seconds to recover from the shock of the accident to realize he should return to the scene to help [Redacted], by which time it was too late.
26 In keeping with their finding of guilt, the jury was satisfied beyond a reasonable doubt that:
a.Â Â [Redacted] left the scene in order to escape liability (although it is agreed that the accident itself was not his fault);
b.Â Â in doing so, he breached his legal duty to stop and offer assistance to [Redacted];
c.Â Â it was reasonably foreseeable that when [Redacted] left, [Redacted] would suffer substantial harm;
d.Â Â in leaving, he showed a wanton and reckless disregard for [Redacted]'s life;
e.Â Â this conduct amounts to a marked and substantial departure from that expected of a reasonable person in the circumstances; and
f.Â Â his decision to flee, albeit a decision that lasted for only 20 to 25 seconds, was a significant factor in [Redacted]'s death.
27 Although he was found to have the mental intent to leave the scene immediately after the accident, there is no question that the collision between [Redacted] and [Redacted]'s vehicle was an unforeseen, sudden, stressful and unusual incident. The accident was not [Redacted]'s fault.
28 The parties do not agree as to [Redacted]'s moral blameworthiness.
29 Defence counsel submits that [Redacted] returned to the scene of the accident because he came to his full senses after the shock of hitting someone, and he wanted to see if the victim was alright.
30 The Crown takes the position that [Redacted] chose to leave and that his testimony that he drove back to help [Redacted] must be viewed with skepticism because he lied to [Redacted] about the reason for coming back and did not drive back to the exact same spot where the accident occurred.
31 In my view, [Redacted] was clearly subject to great stress when, tired and on his way home in the dark, his vehicle hit a man who flew in front of his eyes across the car and onto the ground. The accident was not his fault. However, the jury found that this stress was not sufficient to render him incapable of making decisions and he decided to leave out of fear of civil or criminal responsibility.
32 Thereafter, [Redacted] came back to assist [Redacted] and not, as the Crown suggests, to see how much trouble he was in. He parked in the same general area of the parking lot as there was now a large truck where the accident occurred. He did not disclose the earlier collision and he should have. However, he remained at the scene and assisted in calling 911 and speaking with the Supervisor until his Supervisor told him he need not stay any more.
3. THE CIRCUMSTANCES OF THIS OFFENDER
33 A presentence report was prepared to provide information about [Redacted]. The report was extremely positive.
34 [Redacted] was born in the Philippines on June 27, 1975. He is the fourth of six children. He had a happy childhood, and none of his immediate family members has a criminal record. His father has died, but he maintains a positive relationship with his mother and siblings.
35 He is now 40 years old. He has no criminal record for any other offences, and there are neither any outstanding charges against him nor any past or outstanding driving charges.
36 [Redacted] met his wife in the mid-1990s.
37 In 2002, [Redacted]'s wife moved to Canada, and he came to join her in 2007. He has worked continuously since his arrival. He is a permanent resident.
38 [Redacted] resides with his wife, his two very young children and his sister. His wife is a laboratory technician.
39 He had a third child who died in February 2014. She had pneumonia. [Redacted] was home with the child while he was released on bail on these charges. One of the conditions of his bail was that he was not permitted to drive. He therefore called his family physician who told him to give the child Tylenol. The child's condition got worse, and by the time they were able to get her to hospital, she was so ill that she died. The loss of his daughter has haunted him, especially as he was not able to drive and did not take her to hospital as soon as he otherwise would have.
40 [Redacted] and his wife attend counselling sessions to address the loss of their daughter and the effect of these offences.
41 [Redacted]'s wife describes him as a family man and a good husband. She is supportive and will provide any necessary assistance. [Redacted]'s sister describes her brother as a good father, husband and a religious person. She indicated from the time he was a child to the present, he has never encountered any trouble with authority.
42 [Redacted] has been out of custody on bail terms since December 2011. He has not contravened any of the terms of his bail. The terms of his bail include a provision that he cannot drive a car or travel out of Ontario.
43 He continues to work as a machine operator for an industrial safety supplies distributor.
44 [Redacted] has never had a problem with alcohol and has never experimented with illicit substances.
45 He has undergone supportive counselling and has expressed his willingness to continue to do so. He also voiced his readiness to comply fully with any terms of community supervision should such be ordered by the Court.
46 According to the author of the Pre-Sentence report, "Mr. [Redacted] was polite and compliant during the interview. He presented as personable and disappointed in himself regarding his current circumstances... He indicated that the death of the victim will upset him for the rest of his life... and he continues to grieve the death of the victim."
47 It is agreed that this was an offence committed in response to an unforeseen event rather than a decision to commit a wrongful action.
48 Given all of the above, his otherwise good character and the fact that this was a situation to which he reacted rather than one he created, the chances of his reoffending are extremely low.
4. THE VICTIM IMPACT STATEMENT
49 [Redacted]'s family attended the trial. They listened to the evidence through a Russian interpreter. They prepared a letter for the court that reads as follows:
The incident that happened on December 14, 2011 became a terrible shock and a severe hardship not only for our family but also for the many friends and relatives. We have lost a very dear, beloved and loving man who was a pillar and support for all of us. It is very hard to talk about it. The loss is irreparable and the pain from it will never heal. The tragedy aggravated by the fact that it was the result of a serious crime. Unfortunately, the convicted did not admit his guilt. We are sorry for his family, but we do believe he must carry a just punishment, which will be determined by the Honourable Court.
5. THE LAW
General Principles of Sentencing
50 Section 718 of the Criminal Code provides that, in sentencing a person convicted of offences, the court must consider:
i.Â Â denunciation of the unlawful conduct;
ii.Â Â deterring the offender and others from committing offences;
iii. separation of offenders from society where necessary;
iv.Â rehabilitation of offenders;
v.Â Â reparation for harm done to victims or to the community; and
vi.Â promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
51 The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Therefore, a sentence should be increased or reduced to account for aggravating or mitigating circumstances of the offence or the offender.
52 Parity is another governing principle that requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing ranges are useful to provide guidelines for trial judges. (R. v. Stone,  2 S.C.R. 290, at para 244.)
53 Sentencing is however an individualized process, which necessarily means that sentences imposed for similar offences may not be identical (R. v. Cox, 2011 ONCA 58,  O.J. No. 228; R. v. L.M, 2008 SCC 31,  2 S.C.R. 163.)
The Kienapple Principle
54 A person cannot be convicted of two offences where both arise out of the same facts and where in substance only one "crime" has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered. (Kienapple v. R.,  1 S.C.R. 729.)
55 Both criminal negligence causing death and manslaughter are homicide charges, and both are subject to a maximum penalty of life in prison. In R. v. Morrisey, 2000 SCC 39,  2 S.C.R. 90, in concurring reasons, Arbour J. held, at paras. 61-62:
There is a great deal of overlap between some of the culpable homicides which are not classified as murder, such as unlawful act manslaughter and manslaughter by criminal negligence. Moreover, there is no difference between the offence charged here [criminal negligence causing death] and manslaughter by criminal negligence. Section 222(5)(b) of the Criminal Code, read in conjunction with s. 234, makes clear that the offence of criminal negligence causing death is a type of manslaughter; see also R. v. Creighton, 1993 CanLII 61 (SCC),  3 S.C.R. 3, at pp. 41-42, per McLachlin J. (as she then was). For ease of reference, I set out the relevant provisions:
220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;
222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
234. Culpable homicide that is not murder or infanticide is manslaughter.
236. Every person who commits manslaughter is guilty of an indictable offence and liable,
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;
The circumstances of this case palpably demonstrate the overlap: the accused was initially charged with manslaughter and there is nothing in the record that explains why he was committed for trial on the charge of criminal negligence causing death rather than on the original charge of manslaughter. Nothing turns on this since the two are totally interchangeable. This is further demonstrated by cases, such as R. v. Collins,  O.J. No. 2437 (QL) (S.C.J.), which indicate that the s. 86(2) offence of careless handling or use of a firearm is a lesser, included offence to criminal negligence causing death, the distinction turning on the degree to which the conduct departs from the required standard. The equivalency between the two offences is further demonstrated by the sentencing provisions of s. 220(a) and s. 236(a), both of which provide a four-year, mandatory minimum sentence where a firearm is used in the commission of criminal negligence causing death and manslaughter, respectively. [Emphasis added.]
(See also R. v. Lam,  O.J. No. 4127 (C.A.).)
56 Where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.),  1 S.C.R. 500, at para. 42; R. v. Gummer,  O.J. No. 181 (C.A.), at para 13.)
Relevant Cases involving Similar Offences committed by Similar Offenders in Similar Circumstances
57 Attached as Appendix A to these Reasons for Sentence is a comprehensive table that includes all of the cases cited by counsel as well as additional cases involving similar offences. The summary includes the key facts, including the aggravating and mitigating circumstances in each case. I have paid particular heed to R. v. Aman,  O.J. No. 4998 (C.J.) and R. v. Arruda,  O.J. No. 6288 (C.J.) which are cited by the Crown and R. v. Cobaria (2012) (unreported) (OCJ) cited by the Defence. These cases are most similar to the facts in this case.
58 It is agreed that a conditional sentence is not applicable in this case.
Immigration Consequences of Sentencing
59 In R. v. Pham, 2013 SCC 15,  1 S.C.R. 739, Wagner J. for the Court held, at para. 14, that "a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender." He went on to adopt the position asserted by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 158, where Doherty J.A. held that
[i]f a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender... can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the
assistance afforded to [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence. [Citations omitted.]
60 A permanent resident is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months has been imposed. (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1) (a).)
6. THE POSITIONS OF THE PARTIES
61 The Crown and Defence agree that one of the charges of criminal negligence causing death and manslaughter must be stayed, as in substance only one crime has been committed notwithstanding these two convictions.
62 [Redacted]'s counsel submits that a global sentence of six months less a day should be imposed, which he breaks down as follows:
i.Â Â a sentence of six months less a day on the charge of criminal negligence causing death;
ii.Â Â a stay of the charge of manslaughter; and
iii. a stay of the charge of failure to remain at the scene.
63 Defence counsel relies on the decision in R. v. Morrisey (supra) for his assertion that the convictions of criminal negligence causing death and manslaughter are equally serious charges. He therefore submits that the Kienapple principle should be applied to stay the manslaughter conviction in favour of the conviction for criminal negligence causing death.
64 Moreover, the added component of wanton and reckless disregard that is an essential component of criminal negligence causing death arguably makes it more serious than manslaughter by unlawful act, for which the standard is reasonable foreseeability of an objectively dangerous act.
65 He further suggests that the conviction for failing to remain at the scene of the accident is a necessary element in the charge of criminal negligence causing death and, therefore, his conviction for fail to remain should also be stayed.
66 He submits that there is no record of similar offences committed by similar offenders, and the sentence he proposes would serve the purpose of deterrence and denunciation without jeopardizing any chance [Redacted] might have for rehabilitation.
67 He also notes that [Redacted] will be deported to the Philippines if he receives any one sentence of more than six months.
The Crown's Position
68 The Crown suggests that [Redacted] should receive a global sentence of two years less a day, which the Crown breaks down as follows:
i.Â Â 2 years less a day for manslaughter to be followed by 3 years' probation;
ii.Â Â 9 months for failure to remain at the scene of an accident, to be served concurrent to the conviction for manslaughter; and
iii. a stay of proceedings on the charge of criminal negligence causing death.
69 The Crown suggests that the conviction for criminal negligence causing death should be stayed in favour of the conviction for manslaughter. The Crown relies on the case of R. v. Cox, 2011 ONCA 58,  O.J. No. 228 (C.A.), at para. 3, which reads as follows:
On February 1, 2008, Ms. Cox was convicted of manslaughter, criminal negligence causing death, and failure to provide the necessaries of life. She was sentenced to nine years imprisonment for manslaughter. The convictions for criminal negligence causing death and failure to provide the necessaries of life were stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC),  1 S.C.R. 729.
70 The Crown agrees with the Defence that this is a most unusual case, that there are no cases involving similar facts where the charge of manslaughter was invoked and the cases cited by the Crown are almost all cases involving charges of criminal negligence causing death and failure to remain at the scene of an accident.
71 The Crown also requests the following ancillary orders:
a.Â Â a DNA sample, since manslaughter is a primary designated offence;
b.Â Â a driving prohibition order ([Redacted] suggests the one year mandatory provision is sufficient whereas the Crown suggests 10 years); and
c.Â Â a section 743.21 no-communication order to prevent [Redacted] from contacting 10 people (though there is no evidence that [Redacted] has attempted to contact any of them).
7. APPLYING THE PRINCIPLES OF SENTENCING TO THESE FACTS AND CONCLUSION
72 [Redacted] has been convicted by the jury of failing to remain at the scene of an accident, manslaughter and criminal negligence causing death.
73 Section 724 of the Criminal Code provides:
(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
74 The facts of this offence are as agreed in paragraphs 8 to 27 and as further found by me at paragraphs 31 to 32.
Application of the Kienapple Principle
75 The offences of criminal negligence causing death and manslaughter arise out of the same set of facts and are in effect one crime. In view of the Kienapple principle outlined above, it is therefore agreed that a conditional stay must be entered on one of those two charges.
76 Based on the reasoning in Morrisey, the charges of manslaughter and criminal negligence causing death are equally serious culpable homicides. As such, it is open to the court to stay either the manslaughter or criminal negligence causing death conviction in favour of the other.
77 I find the Cox decision of little assistance as, while the court in Cox decided to stay the conviction for criminal negligence causing death in favour of the manslaughter charge, there is no discussion or analysis of the issue as there is in the Supreme Court decision in Morrisey.
78 The Crown concedes that while [Redacted] was charged with manslaughter, the primary consideration when sentencing an accused is for the court to look at similar offenders who committed similar offences in like circumstances.
79 The cases involving manslaughter are of little or no assistance because neither party has been able to find a single case where an accused was charged with manslaughter on facts similar to this case. The only cases that are similar on their facts to the situation in this case are cases involving the failure to remain at the scene of an accident and/or criminal negligence causing death.
80 The Crown concedes that given that there are no similar cases that involve a manslaughter conviction, I may therefore look to similar cases where the accused was charged with criminal negligence causing death in determining a fit sentence.
81 Because either charge can be stayed and the only similar cases are those involving criminal negligence, I therefore stay the conviction for manslaughter in favour of the conviction for criminal negligence causing death and I have reviewed the many cases cited to me that involve convictions for criminal negligence causing death.
82 I agree with the Crown's submission that the conviction for fail to remain should not be stayed but should rather be served concurrent to the conviction for criminal negligence causing death as the element of bodily harm does not form part of the necessary findings of fact for a conviction for either manslaughter or criminal negligence causing death. I note this is consistent with the decisions in the case law. (See for example: R. v. Desjardins,  B.C.J. No. 1707 (C.A.); R. v. Nandlall,  O.J. No. 3451 (S.C.); R. v. Colby, 1989 ABCA 285, 100 A.R. 142).
83 As a result, [Redacted] will be sentenced for failure to remain at the scene of the accident and criminal negligence causing death. I note that while I have decided to impose a sentence based on these two convictions, my decision as to the appropriate global sentence would not have been different had he been sentenced on the basis of the fail to remain and manslaughter convictions.
Analysis of the Relevant Factors on Sentence
84 I have considered the effect of this tragedy on the victim's family and friends, the principles of sentencing set out in the Criminal Code and the particular circumstances of this offence and this offender. I have reviewed the many cases where sentences were imposed on offenders who failed to remain at the scene of an accident resulting in the death of an innocent victim so as to compare and contrast them with the facts before me.
85 I am acutely aware that [Redacted]'s family and friends will never recover from the shock and horror of his sudden and tragic death. They have nothing left but their memories, and nothing this court can do will bring [Redacted] back.
86 It is important that those who leave the scene of an accident resulting in the death of an innocent man be punished in order to denounce such conduct and to deter others who might do so.
87 The question is: what is a suitable punishment?
88 The facts in each case are unique, but it is agreed that the circumstances of this incident are highly unusual.
89 Unlike almost all of the other cases dealing with persons convicted of failing to remain at the scene of an accident and criminal negligence causing death:
i.Â Â [Redacted] had consumed no alcohol or drugs;
ii.Â Â he was not driving at excessive speed, and in fact, was driving below the acceptable speed limit;
iii. he was not driving erratically or recklessly;
iv.Â he did not instigate the situation leading to the accident;
v.Â Â the situation whereby his car struck [Redacted] was in no way his fault;
vi.Â [Redacted] had just finished an extra-long shift at the request of his employer, and just after midnight, he left to return home to his family;
vii.Â Â at the time of the first collision, [Redacted] had no time to think about what he would do as the event was unforeseen, sudden, stressful and unusual;
viii.Â Â 20 to 25 seconds after the collision, [Redacted] chose to return to the parking lot where the incident took place. Tragically, 20 seconds after the first collision, [Redacted] was run over and killed by a tractor trailer, and by the time he returned it was too late; and
ix.Â after he returned, he stayed to help the truck driver call 911 and report the incident to the supervisor.
90 [Redacted] did not tell anyone that his vehicle had hit [Redacted] before he was run over by the truck driver until the following day, and he should have. However, he did not deny it when first confronted by police. He was at all times cooperative with police and told them things they might not otherwise have known such as the fact that he believed [Redacted] was still alive after the first collision as he saw his limbs move.
91 But for several other significant contributing factors, [Redacted] might never have been hit in the first place or killed: [Redacted] was not wearing any reflective gear as the company did not see fit to provide its night staff with reflective gear (although employees had asked for it), there was a constant, very loud noise in the area so any sounds [Redacted] might have made would not have been heard by the truck driver at the time he was run over, and the lighting in the area was very poor.
92 This case is also highly unusual because of the circumstances of this offender:
i.Â Â he has always expressed his remorse about the fact that [Redacted] was tragically killed. [Redacted] broke down during his testimony at trial (and before his conviction) and expressed his remorse about [Redacted]'s death after he left the scene. Again during the sentencing proceeding, he expressed sadness at the death of [Redacted]. Remorse can mitigate the seriousness of an offence;
ii.Â Â [Redacted] has no outstanding charges against him;
iii. [Redacted] has no prior history of driving infractions;
iv.Â there have been no breaches of his bail conditions for the four and one-half years he has spent on bail. Even in the dire circumstances he found himself in with a very sick child, he obeyed the terms of his bail and did not drive;
v.Â Â [Redacted] has, with the exception of this offence, lead an exemplary life, and he has the full support of his family to assist with his rehabilitation; and
vi.Â he has been involved in counselling to deal with this incident and has indicated a willingness to continue to obtain help.
93 Though there are many mitigating circumstances as set out above, the only aggravating circumstance is the nature of the offences.1
94 [Redacted] does not have the benefit of a guilty plea.
Conclusion as to the Appropriate Sentence
95 There is no mandatory minimum sentence for these offences, and a wide range of sentences have been imposed. This reflects the marked variations in the factual circumstances surrounding the offences and the offenders. Offenders whose reckless conduct such as street racing, speeding, the consumption of drugs and/or alcohol or whose behaviour is discovered long after the fact are
generally subject to much more severe sentences. (R. v. Linden(2000), 147 C.C.C. (3d) 299 (Ont. C.A.).)
96 As noted in the table of cases, there are cases similar to this one on their facts, such as R. v. Aman and R. v. Arruda, in which sentences in the range of 5 to 9 months were awarded. Moreover, there are many others where conditional sentences were ordered. In R v. Cobaria (20 April 2012), Brampton (C.J.), a similar offender in similar circumstances was granted a 90 day intermittent sentence.
97 Nonetheless, I would only impose a sentence of this kind on convictions of this type in highly unusual circumstances. This, in my opinion, is that highly unusual case.
98 This case bears none of the usual hallmarks of "hit and run" cases: As noted above, [Redacted] was not reckless when he hit [Redacted], and the accident was in no way his fault. He reacted during a time of great stress resulting from the unforeseen, traumatic event of seeing a body fly across his windshield and onto the ground in front of him late at night. He exercised very poor judgment during this time of great stress and fled the scene to avoid liability but chose to return seconds later on his own. Tragically, by the time he returned, it was too late. But for this incident, [Redacted] has a very positive record as an upstanding person.
99 To those of you in the [Redacted] family, I know you must live with the pain that nothing this court can do will bring [Redacted] back. I hear your wish for a just punishment.
100 [Redacted] has and will continue to have to live with the fact that his actions resulted in [Redacted]'s death. His actions have brought shame and suffering to him and his family. He will have to live with the knowledge that he has a criminal conviction for serious offences for the rest of his life. I believe that he has and will continue to feel remorse, and he has sought help in trying to understand and deal with his feelings.
101 The highly unusual facts surrounding these offences, the circumstances of this offender, including the fact that I do not believe him to be a threat to the safety or security of others, and his excellent prospects for rehabilitation warrant a sentence of five months on the charge of failing to remain at the scene of the accident and a concurrent sentence of six months on the conviction for criminal negligence.
102 I believe that this sentence addresses the principles of sentencing.
103 In view of the immigration consequences for [Redacted] and in accordance with the reasoning in Pham that a judge may exercise his or her discretion to take collateral immigration consequences into account (provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender), a term of imprisonment of six months less a day on the criminal negligence causing death conviction will be imposed.
104 This will be followed by 18 months of probation and 100 hours of community service. [Redacted] will be afforded credit of 30 days for the 4 1/2 years spent on bail without incident.
105 In addition,
i.Â Â [Redacted] shall provide a sample of his DNA pursuant to section 487.051(4) of the Criminal Code;
ii.Â Â a driving prohibition order will be imposed for 2 years from today's date (as he has already been prohibited from driving a car for 4 1/2 years while he was awaiting trial);
iii. in accordance with section 743.21, there shall be a no communication order to prevent [Redacted] from initiating contact with any of the ten people referred to below:
a)Â Â [Redacted]
b)Â Â [Redacted]
c)Â Â [Redacted]
f)Â Â [Redacted]
g)Â Â [Redacted]
h)Â Â [Redacted]
i)Â Â [Redacted]
j)Â Â [Redacted]
* * * * *
1Â Â I note that at the time of the certiorari application to quash certain charges in this case, the Crown alleged that [Redacted] had told the truck driver "You killed him". This assertion was not proven at trial.