R. v. Linton, 2022 ONCJ 197

CITATION: R. v. Linton , 2022 ONCJ 197 COURT FILE No.: 0611-998-19-1139 DATE: April 27, 2022 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — mitchel linton Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on November 16, 2021 Reasons released on April 27, 2022 Ms. Michelle Occhiogrosso ................................................................................. for the Crown Mr. Jonathan Shime and Mr.

Benjamin ElzingaCheng.................................. for the Offender SCHWARZL, J.: REASONS FOR SENTENCE 1.0: INTRODUCTION [ 1 .] On November 16, 2021, I found the offender, Mitchel Linton, guilty of Dangerous Driving Causing Death and Dangerous Driving Causing Bodily Harm, contrary to sections 320.13(3) and 320.13(2) of the Criminal Code . My verdicts were rendered following a brief uncontested trial necessitated by Mr. Linton’s inability to recall the events that led to these crimes. The process was in essence the equivalent of a guilty plea in the circumstances.

Immediately following my verdicts, the parties made full submissions as to sentence. [ 2 .] Both parties agree that a jail sentence is justified in this case. The prosecution seeks immediate incarceration, whereas the defence urges a jail sentence to be served in the community by means of a conditional sentence order. The defence submits that a mixed sentence of immediate incarceration followed by a conditional sentence might be appropriate as an alternative to their primary position. [ 3 .] Both parties also agree that the offender must be the subject of a driving prohibition order.

The Crown recommends the order be for 5 years; the defence for 2 years. [ 4 .] Before rendering the sentence and providing reasons for it, I recognize that this case involves a colossal tragedy for two families caused by the reckless behaviour of Mr. Linton. His poor judgment resulted in significant permanent emotional and physical injuries. Nothing I say or do can repair the harm done by Mr. Linton. Achieving justice is difficult where so much pain and suffering exists.

While the search for justice is imperfect, it is my task to impose a sentence that tries to balance the harm done to the victims and the community with the duty to treat Mr. Linton fairly, impartially, and in accordance with the law. 2.0: CIRCUMSTANCES OF THE OFFENCE [ 5 .] Shortly after 5:00 p.m. on June 13, 2019, the offender was driving his Ford pick-up truck westbound on Healy Road in Caledon. Mr. Linton decided to pass a line of cars in front of him in a 70 km/h zone. The point at which he chose to pass was patently

dangerous, being a sweeping curve to the left that prevented him from seeing traffic in the opposite lane. The road marking reflected this hazard by separating the lanes with double solid lines. Undeterred by the risk, Mr. Linton swung out into the eastbound lane and sped up to over 100 km/h to overtake traffic. While passing, he struck an unseen eastbound Honda CRV containing three occupants. His irresponsible behaviour had tragic consequences. The driver of the CRV, Ms. Lucilia Duarte Santos, aged 49, was killed instantly.

Her 20-year-old son, Eric Medeiros, and her 18-year-old son, Paulo, both suffered crippling and permanent injuries. Mr. Linton lost consciousness, suffered a serious concussion, and a debilitating injury to his right foot. Like both automobiles, lives of those involved were ruined by the brief but fatal decision by the offender. [ 6 .] Weather and road conditions, alcohol, drugs, fatigue, and mechanical failure were not factors in these disastrous events. There was no evidence of prior bad driving leading up to the collision.

The sole cause of this tragedy was the poor decision of, and the unjustifiable risk taken by, the offender to pass cars ahead. 3.0: CIRCUMSTANCE OF THE OFFENDER [ 7 .] Mitchel Linton was 27 years old at the time of the offence. He has no prior criminal or traffic records. When he committed these crimes, he was working as an auto mechanic and was engaged to be married. Since that time, he has lost both his job and his relationship due to these offences. [ 8 .] He has taken full legal and moral responsibility for his crimes. He has always intended to resolve the matter without a contested trial. [ 9 .] Mr.

Linton produced a letter of remorse addressed to the victims and their family. In that letter, the offender demonstrated deep and genuine contrition for his acts. [ 10 .] The offender suffered significant injuries in the collision, including a broken right foot that has caused permanent difficulties in walking and standing. This, in turn, has made it hard for him to continue working as a mechanic. He suffers from depression and anxiety for what he has done.

The offender has contemplated suicide for the harm he has caused. [ 11 .] The offender has considerable support from family and friends as is evidence by the many character letters filed on his behalf. These people all attested to the offender’s prior good driving habits. They also describe the offender as a responsible, hardworking, and decent person. [ 12 .] Since being charged with these crimes, the offender has not committed any further offences. [ 13 .] In open court, Mr. Linton addressed me and the victims.

He expressed his sincere remorse and acknowledged the indescribable suffering endured by the victims and their family because of him. 4.0: VICTIM IMPACT [ 14 .] I received victim impact statements from each surviving victim and from four other children of Ms. Duarte Santos. All of them described the dark and empty void in their hearts caused by her untimely, and wholly avoidable death. Both Eric and Paulo Medeiros cannot move without pain. When they move it is hard to do so; Paulo needs a wheelchair, and both men have had their health and lifestyles irreparably impaired.

Both young men suffer constant physical and emotional agony. Even with years of therapy, their lives and those of their family will never be the same. [ 15 .] The impact on the victims is profound, heart wrenching, and chronic. 5.0: MITIGATING, AGGRAVATING AND OTHER RELEVANT FACTORS 5.1: Mitigating Factors [ 16 .] I take into account the following relevant mitigating circumstances:

(

a) Mr. Linton was 27 at the time and, as such, is a relatively youthful offender; (

b) He has no prior criminal record; (

c) He has no prior traffic record; (

d) He has no history or habits of bad driving; (

e) He is a conscientious and otherwise law-abiding citizen; (

f) He has considerable family and community support; (

g) He has taken complete responsibility for his conduct; (

h) He has effectively pled guilty without the need for a contested trial; and (

i) He has suffered permanent injuries because of his crimes. 5.2: Aggravating Factors [ 17 .] In considering the appropriate sentence, I take into account the following aggravating factors: (

a) The actions of the offender caused the death of one person and bodily harm to two others:

section 320.22 (a), Criminal Code ; (

b) The bodily harm caused to each of Eric and Paulo Medeiros is both severe and long term. The prospect of recovery for each of them is poor. They are unlikely to thrive in the future, being trapped in broken bodies and souls; (

c) The impact on the victims and their family is deep and may fairly be described as a long and unending trail of physical and psychological misery; and (

d) While the driving fault was relatively brief, it involved both high speed and a deliberate disregard for traffic and the rules of the road. 5.3: Other Relevant Factors [ 18 .] There are other relevant factors I have considered including: (

a) Alcohol, drugs, and fatigue were not features of these crimes; (

b) There is no evidence of antecedent bad driving that day or earlier; (

c) Ontario continues to be in the throes of the COVID pandemic. At the time of sentencing, the province is subject to a sixth wave of the disease; (

d) Other than

section 320.22 (a), no other statutorily aggravating circumstances are present in this case; (

e) The injuries sustained by the offender have the collateral result of impinging on his ability to work in his chosen field; and (

f) The offender has not committed any other offences since being charged with these crimes. 6.0: POSITIONS OF THE PARTIES 6.1: The Prosecution [ 19 .] Crown counsel submitted that a jail sentence of between 3 and 4 years is warranted in this case. In arriving at this submission, they rely on the gravity of this offence, the very high blameworthiness of Mr. Linton, and the need for general deterrence of such fatal risk taking. The prosecution further submits that denunciation is a key factor to consider: R. v.

Singh , 2018 ONSC 4598 at paragraphs 22 to 25 (affirmed 2019 ONCA 872 ). [ 20 .] The prosecution submits that while the range of sentences for dangerous driving causing death and bodily harm is very broad, the primary focus of sentencing in such cases should be denunciation and deterrence: R. v. Saunders , 2021 ONSC 6149 at paragraph 42 . Ordinarily, these principles point towards sentences of immediate incarceration, even for youthful first offenders: R. v.

Yogeswaran , 2021 ONSC 5920 at paragraphs 32 to 49 ; paragraph 65. [ 21 .] With respect to the imposition of a conditional sentence, the Crown acknowledges that in 2020 the Ontario Court of Appeal ruled that such a sentence is available in a case like this one: R. v. Sharma , 2020 ONCA 478 . Nevertheless, the prosecution submits that a conditional sentence should not be imposed for two reasons. First, they submit that the appropriate sentence should be higher than the maximum allowed for conditional sentences, which is two years less a day.

Second, a conditional sentence, even if the appropriate sentence was under two years, does not adequately address the principles of denunciation and deterrence.

6.2: The Defence [22.] Mr. Linton submits that a fit global sentence under two years in this case, and further that a conditional sentence is capable ofadequately addressing both deterrence and denunciation. [23.] With respect to the appropriate sentence being under two years, the defence argued that all the cases relied on by the Crown tojustify higher sentences possessed aggravating factors that are absent here.

For example, the cases relied on by the Crown involved suchfeatures as offenders with prior driving records, the use of alcohol, lengthier durations of bad driving, professional drivers, offenders whodownplayed their responsibility, bad driving in poor weather, or absconding offenders. The defence submits that in those cases,sentences of more than two years were amply justified.

However, in light of the circumstances of this offender and these offences, theysubmit that a sentence of under two years is appropriate when considering all of the mitigating, aggravating, and other relevant factors. [24.] As for the appropriateness of a conditional sentence, the offender submits in the case of R. v. Proulx, (2000) 2000 SCC 5, 140 C.C.C. (3d) 449 the Supreme Court of Canada held that a conditional sentence can meaningfully address the issues ofdeterrence and denunciation where onerous conditions are imposed and the term of sentence is longer than one with immediateincarceration.

This point was recently reinforced by the Ontario Court of Appeal in Sharma, supra, where the court stated at paragraph171: Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate,depending on "the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender andthe community in which the conditional sentence is to be served": Proulx, at para. 114; see, also, Wells, at para. 35. [25.] The offender submits that in this case, the appropriate sentence is under two years given the absence of aggravating factorsfound in cases with longer sentences.

He submits that he in not a danger to the community if I order a conditional sentence. He readilyacknowledges, however, that in the circumstances of this case, the sentence should be close to two years, but to be served in thecommunity on strict conditions which he submits would meet the concerns of denunciation and deterrence. 7.0: ANALYSIS [26.] The range of sentencing is cases involving dangerous driving causing death and bodily harm run the gamut from a few monthsto five years or more.

Such a wide range is of little practical use, but it reminds us that sentencing is an individualized process that mustassess and balance the unique circumstances of each case, each victim, and each offender. [27.] There is no doubt that a jail sentence is needed in this case to address both deterrence and denunciation. The questions I mustanswer are (

a) how long is the appropriate sentence? and (

b) if the appropriate sentence is under two years, is a conditional sentenceadequate? [28.] After carefully assessing all of the mitigating, aggravating, and other relevant circumstances of this offender and these offencesas I have already described, I conclude that a fit global sentence is under two years.

Notwithstanding the horrific consequences of theoffender’s deliberate conduct, when doing my duty and applying the law as dispassionately and as even-handedly as possible, apenitentiary sentence in this case is not needed to hold this offender accountable nor is it necessary to denounce his conduct and deterothers in similar circumstances.

In reaching this conclusion, I accept the defence submissions that this case does not display theaggravating factors that would otherwise result in a penitentiary sentence. [29.] I am also satisfied that in this case, the sentence can be served in the community based on the offender receiving the maximumavailable term with strict conditions on his liberty. The offender is not a danger to the community given his lack of any prior criminalactivity, his strong prosocial character, and the significant community support he possesses.

In these circumstances, the ends of justiceare met without the need for any immediate incarceration. A global conditional sentence of two years less a day addresses the gravity ofthe offence and the blameworthiness of the offender. 8.0: THE SENTENCE [30.] My sentence is therefore as follows. [31.] On Count #1, Dangerous Driving Causing Death, I direct the offender to be subject to a conditional sentence of two years less aday. On Count #2, Dangerous Driving Causing Bodily Harm, the offender will be subject to a conditional sentence of sixteen months,concurrent to Count #1.

[ 32 .] The offender will be subject to house arrest for the entirety of the sentence and will be subject to electronic monitoring. Should Mr. Linton violate any term of the conditional sentence order, he risks actual incarceration for up to the remainder of his sentence.

I want to remind the offender that unlike a sentence of immediate incarceration, the conditional sentence will not be subject to remission or parole for good behaviour; he will serve every single day of the sentence under the authority of my orders. [ 33 .] With respect to the matter of driving prohibition orders, given the nature of the offences and the horrible consequences inflicted by the offender, he shall be prohibited from operating a motor vehicle for 4 and one-half years, concurrent on each offence. [ 34 .] I will hear submissions from counsel as to possible exceptions to the house arrest condition as well as submissions on any other ancillary orders such as victim surcharges, and DNA orders. ______________________________ Richard H.K.

Schwarzl, Justice of the Ontario Court of Justice