R. v. Tavares, 2023 ONCJ 517

CITATION: R. v. Tavares , 2023 ONCJ 517 DATE: November 24, 2023 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 and the Provincial Offences Act, R.S.O. 1990, c. P.33 Between His Majesty The King prosecutor and Jordan Tavares defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Sentence Convictions were entered on March 3, 2023 for the following offences: (1) s. 144(7) H.T.A. – “fail to yield to pedestrian”. (2) s. 53(1) H.T.A. – “driving while under suspension”. Sentencing hearing held : June 22, 2023 and September 12, 2023.

Judgment released: November 24, 2023. Counsel: M. Bayat, assistant Crown attorney S. Senatorov, legal representative for the defendant Cases Considered or Referred To: Galaske v. O'Donnell, (SCC), [1994] 1 S.C.R. 670, [1994] S.C.J. No. 28 (S.C.C.). Ontario (Ministry of Labour) v. New Mex Canada Inc., 2019 ONCA 30 , [2019] O.J. No. 227 (Ont. C.A.), per MacPherson, Miller andPaciocco JJ.A. R. v. Abrosimo, 2007 BCCA 406 , [2007] B.C.J. No. 1700 (B.C.C.A.). R. v. Angelillo, 2006 SCC 55 , [2006] S.C.J. No. 55 (S.C.C.). R. v. Bartkow (1978), (NS CA), 24 N.S.R. (2d) 518 (N.S.S.C.). R. v.

Cotton Felts Ltd. (1982), (ON CA), 2 C.C.C. (3d) 287, [1982] O.J. No. 178 (Ont. C.A.), per Martin, Zuber and BlairJJ.A. R. v. Chan, 2012 ABPC 272 , [2012] A.J. No. 1023 (Alta. Prov. Ct.). R. v. D.F.P., 2005 NLCA 31 , [2005] N.J. No. 176 (N.L.C.A.). R. v. D.S.K., 2005 SKCA 18 , [2005] S.J. No. 97 (Sask. C.A.). R. v. E.T.P., [2002] M.J. No. 64 (Man C.A.). R. v. Gardiner, (SCC), [1982] S.C.J. No. 71 (S.C.C.). R. v. Hicks, 2007 NLCA 41 , [2007] N.J. No. 219 (N.L.C.A.). R. v. Hopkins, [2005] O.J. No. 6063 (Ont. C.J.), per Wallace J. R. v. Jones (1994), (SCC), 89 C.C.C. (3d) 353 (S.C.C.). R. v.

Jordan Tavares, [2023] O.J. No. 985, 2023 ONCJ 94 (Ont. C.J.), per Quon J.P.

R. v. Kirk (No.1), [2005] O.J. No. 3316, 2005 ONCJ 352 (Ont. C.J.), per Kukurin J. R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53 (S.C.C.). R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.). R. v. Riley, (1996) 1996 NSCA 112 , 107 C.C.C. (3d) 278, 150 N.S.R. (2d) 390, [1996] N.S.J. No. 183 (N.S.C.A.). R. v. Snider, (1977), (ON CA), 37 C.C.C. (2d) 189, [1977] O.J. No. 996 (Ont. C.A.), per Martin, Lacourciere and WeatherstonJJ.A. R. v. Solomon, 2008 SCC 62 , [2008] S.C.J. No. 55 (S.C.C.). R. v. Sweeney (1992), (BC CA), 71 C.C.C. (3d) 82, 11 C.R. (4th) 1 (B.C.C.A.). R. v.

Tiegs, 2012 ABCA 116 , [2012] A.J. No. 378 (Alta. C.A.). R. v. Topp, 2011 SCC 43 , [2011] S.C.J. No. 43 (S.C.C.). R. v. Virk, [2002] O.J. No. 4102 (Ont. C.J.), per Madigan J.P. R. v. Wharry, 2008 ABCA 293 , [2008] A.J. No. 945 (Alta. C.A.). R. v. Wholesale Travel Group Inc. (1991), (SCC), 67 C.C.C. (3d) 193 (S.C.C.). Statutes, Regulations and Rules Cited: Criminal Code, R.S.C., 1985, c. C-46, ss. 718, 718.1, 718.2, 718.2(a), 718.2(b), 718.2(c), 718.2(d),723(1) and (2), and 724(1). Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 31, 32(1), 53(1), 53(1.1), 53(3), 144(7), and 144.1(1).

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 56(1), 72, 72(1)(b), 72(2), and 72(3)(c). Reference Material Cited or Considered: Ruby, C. Sentencing (10th Ed.) (Toronto, Canada: LexisNexis Canada Inc., 2020). Stewart, S. Stewart on Provincial Offences Procedure in Ontario (3rd. Ed.) (Toronto, Canada: Earlscourt Legal Press, Inc., 2011).

Exhibits entered: Exhibit "1" - Seven page “Pre-Sentence Report” prepared by Probation & Parole Officer Alexis Trigiani-Kirwood and dated Sept. 7, 2023, with direction for pre-sentence report under s. 56 of the Provincial Offences Act , and email from Peter Scaramuzzo, Court Liaison Officer/Probation & Parole Officer (9 pages) Exhibit "2" - Two Victim Impact Statements written by the deceased pedestrian’s sister, Elisabeth Maria Hekman, dated October 2, 2022, and written by the deceased pedestrian’s daughter, Mieke Bosscher, dated October 2, 2022 (2 pages).

Exhibit "3" - certified copy of Ministry of Transportation FOI Restricted Driving Record of Jordan Tavares, dated October 3, 2022 (17 pages). . Exhibit "4" - copy of “Coroner’s Investigation Statement” numbered 2020-1472-A of coroner Dr. Adriana Krizova dated August 2, 2020 in which Martha Bosscher’s death was pronounced and which indicates that the medical cause of death was from “Complications of Blunt Impact Chest Trauma” (3 pages).

Exhibit "5" - document entitled “Driver’s Licence Check Results” from Ontario Ministry of Transportation dated September 11, 2023, which states that driver’s licence # [removed for privacy] (in respect to Jordan Tavares) is not suspended, cancelled or expired and that the driver is allowed to operate the type of vehicle for which they are licensed (1 page). Exhibit "6" - a document entitled “Client’s Financial Information Form” prepared by Traffic Law Paralegal Services in respect to Jordan Tavares’ income and monthly expenses (2 pages). Exhibit "7" - copy of R. v. Hopkins , [2005] O.J. No. 6063 (Ont.

C.J.) , by Wallace J. (22 pages). 1. INTRODUCTION [ 1 ] These are the reasons in the sentencing of Jordan Tavares, who was convicted of committing two Ontario Highway Traffic Act , R.S.O. 1990, c. H.8 ( H.T.A. ) offences by this court on March 3, 2023 (see R. v. Jordan Tavares , [2023] O.J. No. 985, 2023 ONCJ 94 (Ont. C.J.) . The two convictions were for “failing to yield to a pedestrian” under s. 144(7) and for “driving while under suspension” under s. 53(1) .

Tavares had been driving a pickup truck and had stopped at an intersection for a red light on July 28, 2020, in Brampton, and when he had commenced to make a right turn he unfortunately collided with Martha Bosscher, who is disabled and who had just lawfully entered the pedestrian crosswalk while she had been riding on her mobility scooter.

Martha Bosscher was 85 years old at the time, and after being struck by the pickup truck driven by Tavares, her head was bleeding and she had been taken by ambulance to the hospital for her injuries, where she subsequently succumbed to her injuries and passed away four days later on August 1, 2020. The collision had also occurred during the COVID-19 pandemic and Martha Bosscher had been on a shopping trip outside of her residence, which had been a highlight of her day, so that she could deal with living in isolation from her friends and family.

She had also passed away in a hospital that had placed restrictions on the number of people who could enter the hospital, so only a few of her family were able to visit her at the hospital before she passed away. [ 2 ] After Tavares had been convicted for the two offences, the Crown had informed Tavares' first legal representative that it was seeking a custodial term as a sentence and the matter was then adjourned so that a Pre-Sentence Report (“P.S.R.”) for the offender could be prepared.

The sentencing hearing for Jordan Tavares had been initially scheduled for June 22, 2023, but it could not begin as Tavares’ original legal representative had applied on that day to be removed as Tavares’ representative, and the sentencing hearing was then adjourned to September 12, 2023, so that Tavares could retain new representation and to meet with a probation officer.

After Tavares finally attended, and met with a probation officer on August 17, 2023, a six-page P.S.R. dated September 7, 2023 (Exhibit #1), was prepared by a probation officer and provided to the court and also provided to both the Crown and to Tavares' legal representative.

Subsequently, Tavares’ sentencing hearing was held and completed on September 12, 2023. [ 3 ] At the September 12 th sentencing hearing, the Crown argued for a term of imprisonment of 6 months and a probation order for a period of 12 months with a condition for Tavares not to drive or operate any motor vehicle during that period for Tavares’ conviction of “driving while under suspension” under s. 53(1) . For the “failing to yield to a pedestrian” conviction under s. 144(7) the Crown seeks a $500 fine.

On the other hand, Tavares' legal representative submitted that a sentence of imprisonment is not appropriate for a first conviction for the “driving while under suspension” conviction, since Tavares had originally brought his motor vehicle to a stop before he collided with the pedestrian; that Tavares’ driving conduct had not been egregious, albeit it did fall below the standard of a reasonable prudent driver; and that the reason that Tavares’ driver’s licence had been suspended was due to unpaid fines and that Tavares has paid off all his fines, and that once Tavares was charged on July 28, 2020, Tavares had paid off the fines and reinstated his driver’s licence (about three weeks) shortly after the collision; and that Jordan Tavares and his family would consequently also suffer economically from the automatic suspension of Tavares’ driver’s licence for 6 months, as Tavares had been using his motor vehicle to travel to his workplace as a self-employed concrete worker; and that any fine that would be imposed on Tavares would negatively affect Tavares and his family from paying all their bills.

[ 4 ] However, the Crown disagrees with Tavares' legal representative’s submission on the unsuitability of a jail sentence and argues that the aggravating circumstances of Martha Bosscher’s death which ultimately resulted from the injuries sustained from the collision, Tavares not being legally permitted to drive a motor vehicle on a highway at the time of the collision because his driver's licence had been suspended (already for 320 days), and Tavares’ numerous convictions (five) for driving without a valid and current driver’s licence, calls for a custodial sentence to be imposed. [ 5 ] First of all, sentencing an offender convicted of committing a traffic offence, in which someone has died as a result of their injuries that had been sustained in a motor vehicle collision, is not a tool for retribution or revenge or for obtaining an eye-for-an-eye measure of justice for the victim or the victim’s family, but is a process of balancing legal principles and objectives, applying the rule of law, and for treating the victim and their family with respect. [ 6 ] Ergo, as result of the Crown’s and Tavares' legal representative’s sentencing submissions, the principal issue that has to be decided is whether a term of imprisonment should form part of the sentence imposed on the offender, Jordan Tavares, who has been convicted for the first time for the offence of “driving while under suspension” under s. 53(1) of the H.T.A.

After a review of the sentencing principles, including the principle of restraint, and the statutory penalties that are available for a court to impose on an offender, it is evident that even for a first conviction, a term of imprisonment is available as a potential penalty that can be imposed, since s. 53(1) of the H.T.A. specifically provides for imprisonment for up to a maximum of six months as a possible sentence for an offender who is convicted of “driving while under suspension”.

But more importantly, the present penalty provision for that offence contained in s. 53(1) does not expressly state that a term of imprisonment can only be imposed when the offender has been convicted previously of “driving while under suspension” offence or only when the offender has collected more than one prior conviction of the same offence during a certain period.

Ergo, despite the sentencing principle of restraint, the availability of a jail sentence of up to six months for committing the “driving while under suspension” offence when most penalties for H.T.A. offences are for fines, would also dispel any notion that a sentence of imprisonment is not warranted for a first conviction of “driving while under suspension”. In other words, the Ontario Legislature decided that the offence of “driving while under suspension” under s. 53(1) is serious offence that requires a severe penalty to deter suspended drivers from driving on Ontario highways.

Moreover, Tavares’ situation and circumstances are different from the run-of-the-mill convictions for “driving while under suspension” where consideration for imposing a jail sentence is primarily predicated on a history of previous convictions of “driving while under suspension”, so that imprisonment would not likely be imposed for a first conviction.

However, in an exceptional case like the present, where there is a serious injury to a person resulting from a collision and the consequential death of that person from those injuries that had been caused by the driving actions of the convicted offender while the convicted offender was a suspended driver, a sentence of imprisonment for a first-time offender of s. 53(1) would not be incongruous to the principle of restraint.

Accordingly, even though imposing a custodial sentence for a first conviction for the offence of “driving while under suspension” is permissible, it would nonetheless still depend on a myriad of factors. [ 7 ] And lastly, after thorough and well-argued submissions were made by both the Crown and by the Tavares' legal representative as to the appropriate penalty that the court should impose on Jordan Tavares for committing the two H.T.A. offences, judgment on sentence was reserved on September 12, 2023, and adjourned to November 24, 2023, for judgment. These, therefore, are the written reasons for sentence: 2.

THE OFFENCES COMMITTED BY JORDAN TAVARES [ 8 ] Jordan Tavares was convicted on March 3, 2023, for committing the following two Highway Traffic Act offences o n July 28, 2020, at approximately 2:22 p.m. at the City of Brampton that were set out in Information #999-20-06956: (1) drove a motor vehicle on Steeles Avenue, at the intersection of Steeles Avenue and Lancashire Lane, controlled by automatic traffic signals, and caused said vehicle to “fail to yield the right of way to a pedestrian” lawfully within an intersection, Contrary to Section 144(7) of the Highway Traffic Act . (2) did unlawfully operate a motor vehicle, licence number [removed for privacy], on a highway, namely on Steeles Avenue at Lancashire Lane, when his driver’s licence was suspended by operation of the Highway Traffic Act Contrary Section 53(1) of the Highway Traffic Act . 3.

SUBMISSIONS ON PENALTY (

a) Submissions on penalty made on behalf of Jordan Tavares [ 9 ] Jordan Tavares’ legal representative submits that Tavares’ 17-page driving abstract starting from 2008 shows that Tavares has only been convicted for minor driving offences, such as failing to surrender insurance card, driving with an expired driver’s licence, not signing the ownership permit in ink, and minor speeding offences. Although it is has been conceded by Tavares' legal representative that Tavares has over the last 15 years

had a conviction nearly every year and even for having a conviction after the pedestrian collision on July 28, 2020, and that Tavares did not have the most exemplary driving record, it is submitted that the driving record should take into account that Tavares spends a lot of time on the road and only gets convicted of minor violations and that none of those convictions were for a major traffic violation.

In addition, Tavares’ legal representative notes that the driving abstract also reveals a pattern of how Tavares deals with his traffic tickets, in that when Tavares receives a minor traffic violation and then gets convicted of that violation, Tavares does nothing about paying the fine and then gets his driver’s licence suspended by the Ministry of Transportation for defaulting in the payment of those fines.

However, when Tavares does learn about his driver’s licence being suspended for unpaid fines, Tavares' legal representative contends that Tavares pays off his fines and then gets his driver’s licence reinstated. The Tavares' legal representative further submits that on average this reinstatement usually occurs two weeks after he finds out about his suspension and that Tavares will then pay off his fines and reinstate his driver’s licence.

In short, it is submitted on behalf of Tavares that Tavares on previous occasions did not pay his fines before they were in default, but that Tavares did take positive steps, although usually a little too late in paying his fines, and that Tavares would always pay off his fines in order to reinstate his driver’s licence.

Unfortunately, it is also submitted that in paying off his fines it would happen late and that it would happen every time with a traffic ticket. [ 10 ] In addition, Tavares' legal representative submits that Tavares had a difficult time before the collision on July 28, 2020, in dealing with his tickets and fines, but that presently with the help of his common law partner, Tavares has been able to stick with deadlines and on how he manages daily life, and that to date, Tavares pays off his tickets on each occasion by going online and pays off his fines before his driver’s licence is suspended by the Ministry of Transportation for unpaid fines.

In short, Tavares' legal representative submits that Tavares after that fateful collision of July 28, 2020, has not ignored a single fine and has taken steps to ensure his driver's licence is valid before he drives. [ 11 ] More importantly, Tavares' legal representative also submits that Jordan Tavares has never been convicted of “driving while under suspension” until the present case. Furthermore, Tavares' legal representative submitted Exhibit #5, which indicates that Tavares’ driver's licence is still current and valid as of September 11, 2023.

As well, Tavares' legal representative emphasized that Tavares only received minor traffic violations after the accident of July 28, 2020, and has paid the fines on those tickets right away, and that this shows a noticeable change in his previous pattern of ignoring his fines and letting his driver’s licence become suspended for unpaid fines, in that Tavares has actually paid off the fines for his tickets before they were in default and before causing a suspension of his driver’s licence for unpaid fines. [ 12 ] In addition, Tavares' legal representative further submits that Tavares’ driving record indicates that Tavares had been involved in two motor vehicle collisions.

For the first collision, Tavares' legal representative submits that Tavares had been rear-ended but was not at fault in that collision, and that for the second collision, it would the present case. Furthermore, Tavares' legal representative submits that although the pedestrian collision of July 28, 2020, is very tragic, the wrongful conduct by Tavares in that pedestrian collision is not the conduct for a criminal offence, but for a provincial offence.

In addition, Tavares' legal representative submits that Tavares’ act or omission was not done purposely or intentionally, which is required for a criminal offence, but that his act or omission had failed his duty to the public. Moreover, Tavares’ act or omission, submits Tavares' legal representative, did not involve risk-taking behaviour such as speeding, running a red light, or making unsafe lane changes. Instead, Tavares' legal representative submits that Tavares had brought his pickup truck to a stop at a red light and made a right turn when the unfortunate injury to the victim resulted.

In addition, it is further submitted that Tavares had not driven off, but had stayed and cooperated at the scene of the accident, and that Tavares had also gotten out of his truck and offered assistance to the pedestrian by taking off his shirt and giving it to the pedestrian to comfort the pedestrian. [ 13 ] Furthermore, Tavares' legal representative submits that Tavares is not a person who did not care about what had happened, as Tavares does appreciate what had occurred and has been distraught over it.

In addition, it is submitted that Tavares had offered help and had cooperated with the authorities. [ 14 ] Tavares' legal representative also submits that Tavares’ legal strategy in regard to not appearing in court, as well as his lack of participation in the trial should not be viewed negatively, since identification of the driver of the pickup truck that had struck the pedestrian was at issue, and that particular strategy and legal position had been available to the defence. [ 15 ] As for the penalty for the "fail to yield to pedestrian” conviction, Tavares' legal representative points out that s. 144(7) does not provide for incarceration and that the sentencing court can only impose a fine.

However, Tavares' legal representative submits that the gravity of the conduct by Tavares in committing that particular offence does not warrant or support the maximum penalty, as Tavares had stopped his motor vehicle before the impact with the pedestrian and had cooperated with the police. Moreover, Tavares' legal representative submits that the failure to yield to the pedestrian should be viewed as a mistake. In addition, Tavares' legal representative submits that the driving conduct by Tavares just before the collision is not classified as terrible and that it was an unfortunate accident that was preventable.

Accordingly, Tavares' legal representative submits that the sentence that could be imposed for the s. 144(7) offence should be proportionate to the circumstances of the offender. [ 16 ] As for the Pre-Sentence Report, Tavares' legal representative emphasizes that Tavares had participated and had been interviewed by the probation officer, who indicated in the written report (Exhibit #1) that no recommendation was necessary and that there were no areas of concern.

Moreover, Tavares' legal representative submits that Tavares’ sister and partner believe that Tavares suffers with ADHD and has difficulties concentrating and completing simple tasks, and that Tavares may need to seek further help.

Additionally, Tavares' legal representative submits that the report indicates that Tavares is extremely remorseful and that his mental health has been affected by the offence, and that Tavares would benefit from counselling. [ 17 ] And, in respect to Tavares and his family’s financial circumstances, Tavares' legal representative submits that Tavares’ partner’s salary will not be enough to support their family if Tavares were to be incarcerated for a significant period, as Tavares and his partner are basically breaking even financially every month, after rent and expenses are paid.

[ 18 ] In addition, Tavares' legal representative also highlights that presently, Tavares’s driver’s licence is now in order, and that Tavares works and contributes to society, and that society benefits from Tavares who works and supports his family. [ 19 ] In respect to the issue of the appropriate penalty for the “driving while under suspension” offence, Tavares' legal representative stresses that a jail sentence for a first conviction for “driving while under suspension” would be a rarity. [ 20 ] As for aggravating circumstances to consider, Tavares' legal representative submits that there had been a tragic loss of life resulting from the collision with the pedestrian.

And that imposing a jail sentence for the “driving while under suspension” conviction in order to send a message to the public in this case, would not require imposing a sentence of incarceration, as imposing such a severe penalty would not take into account the quality of driving that had been involved. Moreover, Tavares' legal representative submits that the present conviction for “driving while under suspension” had more to do with administrative non-compliance and not with Tavares’s actual driving conduct.

And, although Tavares had not complied with those rules and was behind the wheel of a motor vehicle while Tavares’s driver’s licence was suspended, Tavares' legal representative submits that Tavares had fixed the issue with his suspended licence right away, by paying off the outstanding fines immediately after the collision with the pedestrian. [ 21 ] In respect to mitigating factors to consider, Tavares' legal representative submits that Tavares is still dealing with the consequences of the collision with the pedestrian and that if Tavares could relive that event again, we wouldn’t be here. [ 22 ] In addition, Tavares' legal representative submits that a custodial sentence imposed on Tavares for the “driving while under suspension” conviction would not advance the interest of society, in light of Tavares post-collision conduct and that Tavares’ driver’s licence being suspended for default of fines would not likely occur again, as Tavares now pays off his fines immediately, and that Tavares’s partner has taken steps to ensure that Tavares makes timely payment of his bills and fines, so the situation of defaulting on fines should not occur again. [ 23 ] Furthermore, Tavares' legal representative contends that sending Tavares to jail for failing to comply with an administrative requirement would be excessive and that there is nothing that Tavares can do now to change what had occurred as a result of his collision with the pedestrian.

Moreover, imposing a jail sentence as denunciation for Tavares’s failure to pay off his fines in a timely fashion is not necessary, as everything about Tavares’ driver’s licence being suspended for unpaid fines is fixed today. [ 24 ] Moreover, Tavares' legal representative also emphasizes that Tavares driver’s licence will be suspended for six months and a custodial sentence would be outside the range of penalty that is available to the court and that other penalties would instead be able to address deterrence.

In addition, Tavares' legal representative submits that the six-month suspension will be heartfelt by Tavares, as Tavares will have to arrange other transportation to get to work, and that the fines that could be imposed against Tavares will not be small and that it would take months for Tavares to save that amount of money in order to pay off the fines.

Accordingly, Tavares' legal representative submits that a jail sentence for a first conviction for “driving while under suspension” is not warranted. [ 25 ] In addition, Tavares' legal representative further emphasizes that Tavares had been there and had lived through that experience of a tragic loss of life and has had his life turned upside down, and has been affected by that collision. [ 26 ] Furthermore, in arguing against the application of the R. v. Hopkins , [2005] O.J. No. 6063 (Ont.

C.J.) case, in which the convicted offender had been sentenced to a period of imprisonment for being convicted of “driving while under suspension”, Tavares' legal representative submits that the Hopkins case can be distinguished as Hopkins, who received a custodial sentence for a “driving while under suspension” offence had been convicted previously a number of times for “driving while under suspension”, while this would be Tavares’ first conviction for “driving while under suspension”, and like a criminal case it would be rare to impose a jail sentence for a first conviction. [ 27 ] In reply, to the Crown’s sentencing submissions on Tavares’ five convictions for “driving without a valid and current driver’s licence”, Tavares' legal representative submits that where Tavares had previously entered a guilty plea to the offence of “driving without a valid and current driver’s licence” under s. 32(1) of the H.T.A. , it is a common resolution, and that this type of resolution may have been based on Tavares not knowing that his driver’s licence had been suspended and drove while suspended because he did not receive proper M.T.O. notice about the licence suspension or that Tavares may have had a defence to the “driving while under suspension” charge, or the prosecution may not have had sufficient evidence in respect to proper notice of the suspension or that there had been a lack of sufficient notice.

As such, Tavares' legal representative submits that no weight can be placed on the Crown submission that Tavares must have been driving while his driver’s licence had been suspended on four prior occasions before the pedestrian collision. Furthermore, Tavares' legal representative also submits that Tavares in having over 12 convictions for minor driving offences over 15 years of driving is not an atrocious driving record.

Moreover, after the July 28, 2020, collision with the pedestrian, Tavares' legal representative submits that Tavares no longer has the same careless pattern of dealing with his tickets and fines, since there has not been any M.T.O. suspensions and no default of fines for Tavares over those 3 years.

Furthermore, Tavares' legal representative also submits that since 2008, Tavares had gotten a traffic ticket almost every year and then ignored the ticket, but now his driving record indicates that over the last 3 years that pattern has changed, as Tavares now takes proactive steps to address this, and defaulted fines that led to licence suspensions no longer occurs and has not occurred for Tavares after 2020. [ 28 ] Consequently, Tavares' legal representative submits that the penalty that should be imposed against Tavares for the two H.T.A. offences should be a financial penalty and a term of probation to address Tavares’ issues that should also include a condition to seek help for his emotional stress and in

order for Tavares to meet deadlines. (

b) Submissions By The Crown On Penalty [ 29 ] For the “driving while under suspension” conviction, the Crown seeks the maximum penalty of six months in jail and a period of probation for one year with the three statutory conditions set out in the Provincial Offences Act , R.S.O. 1990, c. P.33 , and the additional conditions that Tavares is “not to drive or operate or have care and control of any motor vehicle”, and “not to be in the driver’s seat of any motor vehicle”, and “not to possess any keys or ignition devices for any motor vehicle”.

And, for the “fail to yield to pedestrian” conviction, the Crown seeks a fine of $500, which is more than the minimum fine of $300 and less than the maximum fine of $1,000 that could be imposed by the court for that particular offence. In addition, the Crown submits that these penalties for the two H.T.A. offences would be proportional to the gravity of the offence and the degree of culpability for the offences committed by Tavares.

Moreover, the Crown submits that the sentencing principles from the criminal law would also apply to provincial offences. [ 30 ] For aggravating factors to consider, the Crown submits that the sentencer can rely on the list of factors that are set out in s. 718.2 (

a) of the Criminal Code in respect to aggravating factors and that they would also apply to Tavares.

Moreover, the Crown submits that the penalties they are seeking will address the sentencing principle of “denunciation” and Tavares’ driving record, and that a jail sentence for a first offence, if warranted, is available to the court, and that in the present case, a jail sentence is warranted for the “driving while under suspension” conviction. [ 31 ] In particular, the Crown argues that a jail sentence is warranted for the “driving while under suspension” offence committed on July 28, 2020, since previous fines imposed on Tavares did not deter him from driving while his driver’s licence had been suspended.

In addition, even though Tavares had not been convicted of “driving while under suspension” on other occasions prior to the conviction for “driving while under suspension” for the offence date of July 28, 2020, the Crown submits that Tavares had actually pled guilty to the lesser offence of “driving without a valid and current driver’s licence” on five previous occasions when he had been charged with the offence of “driving while under suspension”.

On those pleas by Tavares to the lesser offence of “driving without a valid and current driver’s licence”, the Crown submits that the court had been lenient with Tavares for those past “driving while under suspension” charges. However, the Crown submits that Tavares is now before the court again for committing a similar offence. And, more importantly, the Crown submits that driving is a privilege and not a right, and that the public needs to be protected from unlicensed drivers.

Furthermore, the Crown reiterates that Tavares has driven in the past when his driver’s licence had been suspended and not legally permitted to drive, which is evidenced in Tavares’ driving record when he had been convicted of “driving without a valid and current driver’s licence”. [ 32 ] As evidence of this contention that the defendant continued to drive during the times that his driver’s licence had been suspended for default of payment of fines, the Crown points to Tavares’ driving record in Exhibit #3 and identifies the offence dates of July 24, 2012, September 4, 2012, September 5, 2012, March 26, 2013, and June 11, 2014, in which Tavares had been charged with “driving while under suspension”, but had subsequently pled guilty to the lesser of offence of “driving without a valid and current driver’s licence” that is contrary to s. 32(1) of the H.T.A. , in respect to those five charges.

Accordingly, on those five offence dates, the Crown submits that Tavares must have been driving a motor vehicle on a highway when his driver’s licence had been suspended.

Also, during the periods when Tavares’ driver’s licence had been suspended, the Crown submits that Tavares had also been convicted of committing other H.T.A. offences, such as the speeding offence of “95 km/h in 80 km/h zone” on September 4, 2012, during the period of suspension between June 6, 2012 to Sept 14, 2012, and the offence of “operating a motor vehicle on a highway without insurance” on June 11, 2014, during the period of suspension between February 21, 2014 to June 11, 2014. [ 33 ] In respect to aggravating and mitigating circumstances to consider in determining the appropriate sentence for Jordan Tavares, the Crown submits that under the Criminal Code a sentence can be increased or reduced when there are respectively aggravating and mitigating circumstances.

As for aggravating circumstances, the Crown submits that at the time of the pedestrian collision, Tavares had been driving a motor vehicle on a highway when his driver’s licence had been suspended; that the death of the pedestrian, Martha Bosscher, who had suffered significant injuries (see Coroner’s Report Exhibit #4) that would not have occurred, but for Tavares’ act; and that Martha Bosscher had been hospitalized when hospitals had been overwhelmed with COVID 19, so that Martha Bosscher’s family could not visit her in her last moments.

In short, the Crown submits that Martha Bosscher would not have suffered that dire fate, but for Tavares driving a motor vehicle when he was not supposed to have been in the driver’s seat of a motor vehicle. In addition, the Crown submits that Tavares has a long unenviable driving record which shows a pattern of driving while he had been a suspended driver.

Hence, the Crown emphasizes that there has been a significant impact on the victim and the victim’s family and that this is an aggravating factor which is evidenced by the written victim impact statements (Exhibit #2) submitted to the court. [ 34 ] Furthermore, the Crown disagrees with Tavares' legal representative’s depiction of the driving offences that Tavares has been convicted of over the last 15 years, as being only minor offences, and points to two speeding convictions that the Crown contends is not minor.

Specifically, The Crown refers to the conviction of Tavares for speeding 140 km/h in a posted 100 km/h zone on March 19, 2013, and speeding 95 km/h in a posted 80 km/h zone on July 10, 2013, when Tavares’s driver’s licence had been suspended, and for operating a motor vehicle without insurance on June 11, 2014. Furthermore, the Crown submits that Tavares also had his driver’s licence suspended for 7 days for a racing/stunt driving conviction on April 2, 2018.

Moreover, the Crown also points out that Tavares had been convicted of the speeding offence of 109 km/h in a posted 80 km/h zone on November 20, 2021, while waiting for the disposition of the present case.

Ergo, the Crown submits that Tavares has shown no care for the safety of the public while his present charges were pending. [ 35 ] And, in respect to mitigating factors to consider for sentence, the Crown submits there has not been an early guilty plea. [ 36 ] As for the financial circumstances of Jordan Tavares, the Crown submits that Tavares had gotten into his motor vehicle on July 28, 2020, even though he did not have a valid driver’s licence since it had been suspended. Moreover, the Crown rebukes the suggestion from Tavares' partner that

Tavares will now take an Uber or public transportation to get to work when he ought to have been doing that before, especially on the date of the collision on July 28, 2020 and on the five occasions when Tavares’ drivers licence had been suspended.

If he had been doing that on July 28, 2020, reasons the Crown, then the fateful event of the pedestrian’s death would have been avoided. [ 37 ] Furthermore, in response to the suggestion that Tavares had taken steps to reinstate his driver’s licence by paying off his fines as a repeated pattern, the Crown contends that particular submission is not accurate when Tavares’ driving record is reviewed, as some of the suspensions simply expired, and that while Tavares’s driver’s licence had been suspended, Tavares had collected new driving offences, which then led to another suspension of his driver’s licence.

Instead, the Crown submits that Tavares shows a disregard for traffic laws, which led to his licence suspensions.

And, even though Tavares had not been convicted prior to the present conviction for “driving while under suspension”, Tavares has nevertheless driven on numerous occasions while his driver’s licence had been under suspension. [ 38 ] And, in response to the submission that the probation officer in the Pre-Sentence Report (Exhibit #1) had commented on Tavares possibly having ADHD, the Crown submits that is not the probation officer’s actual conclusion, since it was only family members who think or believe that Tavares has ADHD.

Moreover, the Crown contends that there is nothing presented that supports the conclusion that Tavares has ADHD, since Tavares’ partner also said that Tavares is highly organized in his work, but not with respect to dealing with his driving fines. [ 39 ] As a result, the Crown submits that a jail sentence is warranted based on the “driving while under suspension” conviction, since fines did not deter Tavares from getting behind the wheel of a motor vehicle while Tavares was a suspended driver or committing other driving infractions when his driver’s licence had been suspended.

Moreover, the Crown submits that Tavares does not care whatsoever with complying with driving rules. Furthermore, the Crown submits that a six-month jail sentence is suitable based on the fatality and the aggravating factors. 4. RELEVANT EVIDENCE CONSIDERED (

a) Testimony of Feleisha Hanson, the common law partner of Jordan Tavares [ 40 ] Feleisha Hanson testified at the sentencing hearing that she is the common law partner of Jordan Tavares and that they are not legally married. She also said that she has two children, a six-year old son and a two-year old daughter. In addition, she said that her son is from another relationship and that Jordan Tavares is the stepfather to her son.

Moreover, Hanson said that her son treats Jordan Tavares as his father. [ 41 ] Furthermore, Hanson testified that Jordan Tavares has his own business and does concrete work, and that he works 12-hour days, seven days a week in the summer, which she indicates is Tavares’ busiest time. She also said that Jordan Tavares has to drive in order to get to work. In addition, she said that she has her own car which she uses to drive to her workplace.

Moreover, she said that Tavares is involved with their family and attends all sporting functions involving the children, and is also involved with dropping off and picking up the children. [ 42 ] But more significantly, Hanson said that she relies on his income, even though Hanson said that she and Tavares do split paying for everything such as groceries, rent, and bills. However, she said that Tavares pays more than she does toward their expenses.

Hanson also said that she earns about $61,000 annually. [ 43 ] Additionally, Hanson said that Tavares is very independent and is also a motivated and hard worker, who enjoys his work. [ 44 ] Moreover, since the pedestrian collision on July 28, 2020, Hanson said that Tavares has had a hard time sleeping, has night terrors, and has not been his normal self. She also said that Tavares appears to be unmotivated and feels bad about the pedestrian collision, and feels guilt about that event.

She further said Tavares has changed a lot and that she has also seen a change in Tavares’ personality, especially in his work. [ 45 ] Furthermore, Hanson said that she does not know how to help him and that Tavares would benefit from talking with someone and needs to see his family doctor or a counsellor.

Hanson also said she had discussed this with Tavares and has herself looked into the counselling through her work. [ 46 ] In addition, Hanson said that Tavares is not close to his family, especially not right now. [ 47 ] As to how financial or other potential penalties would affect Tavares, Hanson said that since she works fulltime, she would need him to help with watching their daughter who is still young. [ 48 ] Moreover, Hanson said that she has tried to help Tavares get organized with scheduling things that Tavares has to do and that she has taken steps to write down things that Tavares has to do in a calendar for him.

This, she said, has helped him be more on top of things. She also said Tavares tries to do better and has taken steps to be better organized. And, although Tavares is well organized with his work, she said that Tavares needs

someone to help him with non-work tasks. [ 49 ] Hanson also said that without a driver’s licence Tavares can take an Uber to get to work, or as they live close to a GO station, Tavares can take a train to get to work downtown. She also said that Tavares will be able to get to his job site and work without a vehicle. [ 50 ] And, when asked how a jail sentence would impact her, Hanson said that a jail sentence would negatively affect his time with the children. (

b) Tavares made a heartfelt apology to the victim’s family who were in the body of the court. [ 51 ] When asked if he wanted to say something to Martha Bosscher’s family who were seated in the courtroom, Tavares stood up in the courtroom and turned to face the family members of Martha Bosscher and told them that he was sorry and did not have words of what to say, and that unfortunately, there is nothing that he could do now and that he cannot undo anything. Tavares also said that he had taken off his shirt after the collision and that his shirt had been put under Martha Bosscher’s head. He also asked them for forgiveness and told them that deep down inside that he is truly sorry. (

c) Background Of Jordan Tavares [ 52 ] On the date of the collision with the pedestrian on July 28, 2020, Jordan Tavares was 29 years old, and on the date of the sentencing hearing of September 12, 2023, Tavares was 32 years old. Tavares is presently in a common law relationship and is the father to two young children. Tavares is also self-employed and has his own concrete business, which he had started when Tavares was 25 to 26 years old, and that his work

schedule is busiest during the summer months. In addition, Tavares has been working since he was a young teenager. Tavares and his partner, Feleisha Hanson, do not own but rent their home. In addition, Tavares’ partner testified that Tavares is not that close with his parents. Tavares’ partner also works fulltime, but she said that she needs Tavares’ income to support their family. Furthermore, Tavares’ partner says that Tavares is very much involved with their two children and that Tavares attends all their sporting events and activities.

In addition, Tavares’ partner said that Tavares does not seem like his normal self since the collision, has night terrors, and feels guilty about the death of the pedestrian. (

d) The Pre-Sentence Report [ 53 ] The probation officer writes in the P.S.R. (Exhibit #1) at p. 7 that there are no significant areas of concern for Jordan Tavares to address: This writer is of the opinion that recommendations are not necessary as the information gathered for the Pre-Sentence Report has not revealed any significant areas of concern for the subject to address. [ 54 ] In addition, the probation officer noted at p. 6 of the P.S.R. that Tavares has been in a relationship with his partner for 6-7 years and that both parties had described the relationship as positive.

However, the probation officer mentioned that Tavares’ partner had noted that Tavares is not very close to his parents and sister, although Tavares informed the probation officer that he had weekly contact with his parents and bi-weekly contact with his sister, which has recently been less.

The probation officer also indicated at p. 6 that Tavares’ sister had been unaware that Tavares had a partner and children. [ 55 ] Furthermore, the probation officer at p. 6 of the P.S.R. indicated that Tavares had informed the probation officer that Tavares had struggled in school growing up and had found it difficult to focus and stay engaged when Tavares was uninterested in the subject matter.

Tavares also informed the probation officer that Tavares had left school at the age of 16 and had entered the workforce where he gained experience in multiple construction jobs until Tavares was able to develop his own business in concrete pouring and concrete finishing. [ 56 ] In addition, the probation officer at p. 6 of the P.S.R. noted that Tavares appeared to be extremely remorseful for his actions that lead to the offences that he had been convicted on and that both Tavares’ sister and partner have expressed to the probation officer that Tavares’ mental health has been affected by the two offences committed on July 28, 2020. (

e) Victim Impact Statements From Martha Bosscher’s Sister And Daughter [ 57 ] The court was also provided with type-written victim impact statements from Martha Bosscher’s sister and daughter that were accepted and collectively entered as Exhibit #2. In their statements, Martha Bosscher’s family spoke about their pain and grief and about Martha Bosscher’s loving and generous spirit, and about her being a hardworking individual, being widowed and disabled, and that she would be greatly missed by her family.

(

f) Coroner’s Investigation Statement [ 58 ] The Crown submitted a copy of the “Coroner’s Investigation Statement” of coroner Dr. Adriana Krizova, dated August 2, 2020 (Exhibit #4), which indicates that Martha Bosscher’s medical cause of death on August 1, 2020 just before midnight, was the result of “Complications of Blunt Impact Chest Trauma” received when the decedent had been struck by a pickup truck on July 28, 2020, and that it was an accidental death. Furthermore, Dr. Krizova indicates that the decedent had a visible deformity to her left femur, a scalp laceration, rib fractures, a left ilium fracture, and a left femoral fracture. (

g) Relevant Parts of Jordan Tavares’ Driving Record [ 59 ] Since August 27, 2009, and up to the date of Tavares’ Ministry of Transportation of Ontario (M.T.O.) driving record that is dated as of October 3, 2022 (Exhibit #3), Tavares has compiled the following driving record of convictions and suspensions related to driving or operating a motor vehicle in Ontario, as well as the periods of Tavares’ driver’s licence suspensions and offences committed while Tavares’ licence had been invalid or under suspension have also been compiled in the following table: Date yr/mo./day D/L suspended D/L reinstated days between suspension and reinstatement dates of period D/L was suspended by MTO Offence committed while D/L suspended by MTO date of infraction Date of Conviction Type of HTA/CAIA offence committed Tavares Involved in motor vehicle collision 1 2009/Aug/27 2009/Aug/11 2009/Aug/27 Defective/improper/no muffler 2 2009/Sep/30 SUSP (9167006) 3 2009/Oct/14 reinstated (9167006) 14 days Sept 30, 2009 to Oct 14, 2009 none in this period 4 2010/Feb/17 2009/July/12 2010/Feb/17 Speeding 79 KMH in 50 KMH zone 5 2010/Aug/25 2010/Feb/11 2010/Aug/25 Defective/improper/no muffler 6 2010/Nov/17 2010/Oct/03 2010/Nov/17 Fail to have insurance card -C.A.I.A. 7 2010/Dec/14 2009/Dec/18 2010/Dec/14 Fail to sign permit in ink 8 2010/Dec/14 2009/Dec/18 2010/Dec/14 Drive Motor/Veh, No currently validated permit 9 2011/Jan/18 SUSP (1009673) 10 2011/Jan/19 reinstated (1009673) 1 day Jan 18, 2011 to Jan 19, 2011 none in this period 11 2011/Mar/15 SUSP (1047945) 12 2011/Mar/23 2010/Aug/22 2011/Mar/23 No number plate on vehicle 13 2011/Apr/26 reinstated (1047945) 42 days Mar 15, 2011 to Apr 26, 2011 none in this period 14 2012/Mar/01 Collision: property damage – driving properly 15 2012/Apr/16 2012/Mar/01 2012/Apr/16 Fail to have insurance card -C.A.I.A. 16 2012/Apr/16 2012/Mar/01 2012/Apr/16 Drive Motor/Veh, No currently validated permit 17 2012/May/15 2012/Mar/11 2012/May/15 Permit use of plate not authorized for vehicle 18 2012/June/6 SUSP

(2090501) 19 2012/Aug/21 2012/Mar/01 2012/Aug/21 Fail to slow/change lane emergency vehicle 20 2012/Sep/14 reinstated(2090501) 100 days June 6, 2012 to Sept 14, 2012 yes 4 HTA offences on Sep 4, 2012, Sep 5, 2012, July 24, 2012 (3 drive no licence and 1 speeding offence) 21 2012/Oct/17 SUSP (2169320) 22 2012/Oct/22 2012/Sep/05 2012/Oct/22 No drivers licence or improper class of licence 23 2012/Dec/10 reinstated (2169320) 54 days Oct 17, 2012 to Dec 10, 2012 none in this period 24 2013/Jan/10 SUSP (3005068) 25 2013/Mar/19 2012/May/11 2013/Mar/19 Speeding 140 KMH in 100 KMH zone 26 2013/Apr/03 ADMIN SUSP (3048449) expired (3048449) 30 days April 3, 2013 to May 3, 2013 27 2013/May/14 reinstated (3005068) 124 days Jan 10, 2013 to May 14, 2013 yes 2 HTA offences on March 26, 2013 (1 drive no licence and 1 fail to have insurance card) 28 2013/June/19 2013/Mar/26 2013/June/19 No drivers licence or improper class of licence 29 2013/June/19 2013/Mar/26 2013/June/19 Fail to have insurance card -C.A.I.A. 30 2013/June/25 2012/July/24 2013/June/25 No drivers licence or improper class of licence 31 2013/July/16 SUSP (3104735) 32 2013/July/16 2012/Sep/04 2013/July/16 No drivers licence or improper class of licence 33 2013/July/16 2012/Sep/04 2013/July/16 Speeding 95 KMH in 80 KMH zone 34 2013/Aug/21 reinstated (3104735) 36 days July 16, 2013 to Aug 21, 2013 none in this period 35 2013/Sep/05 SUSP (3135638) 36 2013/Oct/24 reinstated (3135638) 49 days Sep 5, 2013 to Oct 24, 2013 none in this period 37 2014/Feb/21 SUSP (4031029) 38 2014/June/11 reinstated (4031029) 110 days Feb 21, 2014 to June 11, 2014 yes 2 HTA offences on June 11, 2014 (1 drive no licence and 1 operate MV no insurance)

39 2014/Sep/08 2014/June/11 2014/Sep/08 Operate motor vehicle – no insurance C.A.I.A. 40 2014/Sep/08 2014/June/11 2014/Sep/08 No drivers licence or improper class of licence 41 2015/May/30 Collision: property damage – driving properly 42 2016/June/15 SUSP (6084010) 43 2016/July/27 reinstated (6084010) 42 days June 15, 2016 to July 27, 2016 none in this period 44 2017/Jan/12 SUSP (7005324) 45 2017/Mar/10 reinstated (7005324) 57 days Jan 12, 2017 to Mar 10, 2017 none in this period 46 2017/Nov/20 SUSP (7161077) 47 2017/Dec/19 reinstated (7161077) 29 days Nov 20, 2017 to Dec 19, 2017 none in this period 48 2018/Apr/02 ADMIN SUSP (8756779) 49 2018/Apr/09 expired (8756779) 7 days Apr 2, 2018 to Apr 9, 2018 none in this period 50 2018/Aug/29 Collision: property damage – driving properly 51 2019/Sep/12 SUSP (9121161) 52 2020/July/28 Collision: fatal injury – fail to yield right of way 53 2020/Aug/19 reinstated (9121161) 342 days Sep 12, 2019 to Aug 19, 2020 yes 2 HTA offences on July 28, 2020 (1 D.U.S. and 1 fail to yield to pedestrian) 54 2022/Jan/04 2021/Nov/20 2022/Jan/04 Speeding 109 KMH in 80 KMH zone 55 2022/05/28 Collision: property damage – driving properly [ 60 ] As the above table indicates, Jordan Tavares has collected 21 H.T.A. and Compulsory Automobile Insurance Act convictions from August 27, 2009 to January 4, 2022, plus the two additional H.T.A. convictions in the present proceeding.

He also has been involved from March 1, 2012 to May 28, 2022, in five motor vehicle collisions, including the present one where he struck a pedestrian legally in a pedestrian crosswalk. Moreover, from September 30, 2009 to September 12, 2019, Tavares’ driver’s licence has been suspended 13 times for unpaid fines and suspended administratively twice for demerit points as a novice driver on April 3, 2013 for 30 days and a seven-day suspension on April 2, 2018 for racing, contest or stunt driving.

[ 61 ] The number of days that Tavares’ driver’s licence had been suspended for unpaid fines until the date of the reinstatement of his licence for those 13 suspensions ranged from 1 day to 342 days.

Some of the durations were for 100, 110, and 124 days in which Tavares was not legally permitted to drive before he had reinstated his driver’s licence. [ 62 ] In addition, Tavares has been convicted on five occasions of “driving without a valid and current driver’s licence” for offence dates of July 24, 2012, September 4, 2012, September 5, 2012, March 26, 2013, and June 11, 2014. [ 63 ] Furthermore, the Crown was correct in stating that Tavares' legal representative’s description of Tavares’ convicted driving offences being minor had been incorrect, as Tavares’ driving record in Exhibit #3 indicates there have been some major offences that Tavares has been convicted of committing, namely “speeding 140 kp/h in posted 100 kp/h zone” on May 11, 2012, “operate motor vehicle without insurance” on June 11, 2014, and “speeding 109 kp/h in posted 80 kp/h zone" on January 4, 2022.

In addition, Tavares has been convicted in the present proceeding of two major driving offences of “fail to yield to pedestrian” and “driving while under suspension”. [ 64 ] As well, Tavares has also been convicted of committing H.T.A. and Compulsory Automobile Insurance Act offences on four occasions (including the conviction in the case at bar) during the periods when his driver’s licence had been suspended by the Ministry of Transportation and it would not be unreasonable to infer that Tavares had been still driving motor vehicles on public highways during those driver’s licence suspensions, considering that Tavares would have needed to drive to his workplace and in operating his concrete business, and also on account of the fact that Tavares had been convicted of committing driving offences that fall within the periods in which his driver’s licence had been under suspension. 5.

POTENTIAL PENALTIES THAT COULD BE IMPOSED ON JORDAN TAVARES FOR THE TWO HIGHWAY TRAFFIC ACT CONVICTIONS (a) “fail to yield to pedestrian” offence under s. 144(7) [ 65 ] The penalty for contravening s. 144(7) (“fail to yield to pedestrian” offence) is set out in s. 144.1(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 . A term of imprisonment is not available as a penalty and only a monetary fine can be imposed as a sentence.

Upon conviction for a first offence, the penalty that a sentencing court can impose is a fine of not less than $300 and not more than $1,000, and for each subsequent offence, to a fine of not less than $500 and not more than $1,000: Penalty for certain offences 144.1(1) Every person convicted of an offence under subsection 140(1), 140(3), 144(7) or 176(3) is liable, (

a) for a first offence, to a fine of not less than $300 and not more than $1,000; and (

b) for each subsequent offence, to a fine of not less than $500 and not more than $1,000. Same

(2) An offence referred to in subsection (1) committed more than five years after a previous conviction for an offence referred to in that subsection is not a subsequent offence for the purposes of subsection (1). (b) “driving while under suspension” offence under s. 53(1) [ 66 ] The penalty for “driving while under suspension” is set out in s. 53(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 , which provides that every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence, and on conviction is liable for a first offence, to a fine of not less than $1,000 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both, and for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

In addition, under s. 53(3) , the driver’s licence of a person who is convicted of an offence under s. 53(1) or s. 53(1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto [ emphasis is mine below ]: Driving while driver’s licence suspended

53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable , (

a) for a first offence, to a fine of not less than $1,000 and not more than $5,000 ; and (

b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000 , or to imprisonment for a term of not more than six months, or to both . Same

(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

section 41 or 42, even if it is under suspension at the same time for any other reason, is guilty of an offence and on conviction is liable, (

a) for a first offence, to a fine of not less than $5,000 and not more than $25,000; and (

b) for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000, or to imprisonment for a term of not more than six months, or to both. Subsequent offence

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1) (b). Same

(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1) (b). Licence suspended

(3) The driver’s licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto . (

c) Probation order under s. 72 of Provincial Offences Act [ 67 ] In respect to the imposition of a probation order as a sanction, s. 72 of the Provincial Offences Act , R.S.O. 1990, c. P.33 , governs the imposition of probation orders for an offender convicted of a regulatory offence that is commenced by a

Part III information and permits the sentencer under s. 72(1)(

b) to impose both a fine or a period of imprisonment and a probation order on the offender. Furthermore, where an offender is sentenced to serve a period of probation, the probation order will automatically comprise of three statutory conditions that are set out under s. 72(2) , namely: (1) not commit the same or any related or similar offence; (2) appear before the court as and when required; and (3) notify the court of any change in address. In addition, s. 72(3)(

c) permits the sentencer to impose additional conditions on the offender in the probation order where imprisonment is available as a punishment, which would be related to the circumstances of the offence and of the defendant that had contributed to the commission of the offence which the sentencer would consider appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant [ emphasis is mine below ]:

Probation order 72(1) Where a defendant is convicted of an offence in a proceeding commenced by information , the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission, (

a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order; (

b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order ; or (

c) where it imposes a sentence of imprisonment on the defendant , whether in default of payment of a fine or otherwise, that does not exceed ninety days , order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order . Statutory conditions of order

(2) A probation order shall be deemed to contain the conditions that, (

a) the defendant not commit the same or any related or similar offence , or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; (

b) the defendant appear before the court as and when required ; and (

c) the defendant notify the court of any change in the defendant’s address . Conditions imposed by court

(3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order , (

a) that the defendant satisfy any compensation or restitution that is required or authorized by

an Act; (

b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order; (

c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant ; or (

d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report. 6. USE OF THE PRE-SENTENCE REPORT IN THE SENTENCING OF REGULATORY OFFENDERS

[68] The use of a Pre-Sentence Report (P.S.R.) is provided for under s. 56(1) of the Provincial Offences Act, R.S.O. 1990, c.

P.33: Pre-sentence report 56(1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may direct a probation officer to prepareand file with the court a report in writing relating to the defendant for the purpose of assisting the court in imposing sentence. [69] In addition, if there is no objection to the negative information within the P.S.R., then a sentencing court may properly take into accountnegative information about the offender to which no objection was taken, including any drug use, gambling, and lack of remorse, so as to relate theoffences to the individual: R. v.

Riley, (1996) 1996 NSCA 112 , 107 C.C.C. (3d) 278, 150 N.S.R. (2d) 390, [1996] N.S.J. No. 183 (N.S.C.A.). [70] Moreover, the purpose of a pre-sentence report is to supply to the sentencing court a picture of the offender as a person in society. A probationofficer’s recommendation for community supervision only means that he is not unsuitable for community supervision. The probation officer indeveloping their recommendation does not take into account deterrence and other sentencing objectives that a sentencing court has to consider infinding a fit and suitable sentence for the offender.

The probation officer does not determine the appropriate sentence, but prepares a report to assistthe sentencing court assess the offender’s background, maturity, behaviour, attitude and willingness to make amends and to better able the court toview the offender as a person with individual characteristics. [71] Also, a probation officer does not have the mandate to consider factors, which a sentencing court would consider at arriving at a fit sentence,such as general and specific deterrence and denunciation for the offence committed. [72] The function of a Pre-Sentence Report has also been explained in R. v.

Bartkow (1978), (NS CA), 24 N.S.R. (2d) 518, atpara. 10, where the Nova Scotia Supreme Court concluded that a Pre-Sentence Report should be confined to portraying the background, family,education, employment record, physical and mental health, associates, social activities, potential and motivation of the person and that its function isnot to tell the court what sentence should be imposed [emphasis is mine below].

I wish those who prepare such reports would realize that it is no part of their job to give any information, whether inculpatory or exculpatory,respecting offences which the accused committed, especially ones for which he has not been convicted. Their function is to supply a picture of theaccused as a person in society - his background, family, education, employment record, his physical and mental health, his associates and socialactivities, and his potentialities and motivations.

Their function is not to supply evidence of criminal offences or details of a criminal record or to tellthe court what sentence should be imposed. 7. THE SENTENCING PRINCIPLES WHICH GOVERN REGULATORY OR PUBLIC WELFARE OFFENCES IN ONTARIO (

A) THE OBJECTIVES AND THE PRINCIPLES OF SENTENCING FOR A REGULATORY OFFENCE [73] In determining the appropriate sentence to impose on Jordan Tavares for the two H.T.A. convictions, consideration should begin with R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327, [1996] S.C.J.

No. 28, in which Lamer C.J.C. for the Supreme Court of Canada, held atpara. 82 that the objectives of retribution, deterrence, denunciation, rehabilitation and the protection of society are legitimate objectives of sentencing,and that the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate"sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender [emphasis is mine below]: … it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions.Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justificationfor criminal punishment.

As Gonthier J. emphasized in Goltz, supra, at p. 502, the goals of the penal sanction are both "broad and varied".Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but arenot limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelatedprinciples.

And as La Forest J. emphasized in Lyons, the relative weight and importance of these multiple factors will frequently vary depending on thenature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all thelegitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moralblameworthiness of the offender. [74] Moreover, Lamer C.J.C confirmed, at para. 78, in R. v. M.(C.A.), that a majority of the Supreme Court in R. v.

Jones (1994), (SCC), 89 C.C.C. (3d) 353, at p. 397, had recognized that the fundamental purpose of sentencing for criminal matters was to preserve the authority ofand promote respect for the law through the imposition of just sanctions, which would likewise be an applicable principle for the sentencing ofregulatory offences [emphasis is mine below]:

… With these considerations in mind, the Commission explicitly defined the fundamental purpose of sentencing with reference to the normative goal ofimposing "just sanctions".

As the Commission cast the guiding purpose of criminal sentencing, at p. 153: In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is topreserve the authority of and promote respect for the law through the imposition of just sanctions. [Emphasis added.] A majority of this Court has since expressed approval of this passage as an accurate statement of the essential goals of sentencing. See R. v. Jones, (SCC), [1994] 2 S.C.R. 229, at p. 291 (although I dissented on the merits of the case).

In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is topreserve the authority of and promote respect for the law through the imposition of just sanctions.

(1) What Are The Objectives Of Sentencing For Regulatory Or Public Welfare Offences? (

a) The universal sentencing principles of the criminal law apply equally to the sentencing of regulatory or public welfare offences. [75] Even though the Provincial Offences Act, R.S.O. 1990, c. P.33, the governing procedural statute for the prosecution of regulatory offences inOntario, has not expressly set out the principles and objectives of sentencing for regulatory offences like that which has been codified in the CriminalCode under ss. 718, 718.1, and 718.2, Kukurin J. at para. 16 in R. v. Kirk (c.o.b. B.A. Holdings), 2005 ONCJ 352 , [2005] O.J.

No. 3316(O.C.J.), has reasoned that, despite this lack of specific statutory guidance in the Provincial Offences Act, a sentence is not chosen arbitrarily from thepool of sentence options available in any particular case.

Accordingly, Kukurin J. surmised that an offence created by provincial statute or a federalstatute or one that qualifies as a crime under the Criminal Code is subject to universal principles of sentencing that apply to all offences, so that asentencing court would be bound to apply those universal sentencing principles which are particularly relevant to the nature and circumstances of theoffence and to the particular offender [emphasis is mine below]: The Provincial Offences Act is subdivided into ten parts.

Part IV deals with trials and sentencing. There is no provision in the POA that is analogousto

section 718,

section 718.1 or

section 718.2 of the Criminal Code of Canada. … In other words, there is no specific statutory guideline within thePOA that directs the court to general purposes and principles of sentencing. Notwithstanding this lack of specific statutory guidance, it is evident thata sentence cannot just be chosen arbitrarily from the pool of sentence options available in any particular case. Whether an offence is created by aprovincial statute, or by federal statute or qualifies as a crime under the Criminal Code, it is subject to universal principles of sentencing that apply toall offences.

As a sentencing court, the court imposing the sentence on the defendant Kirk was bound to apply those sentencing principles that wererelevant. For purposes of this appeal, I adopt

section 718,

section 718.1 and

section 718.2 of the Criminal Code as provisions that have applicability tothe offences in this case for which the defendant was convicted, not because the POA specifically imports these by its own terms, but rather becausethe provisions of these sections have general applicability whether an offence is a crime or is an offence created by a provincial statute. [76] As such, the sentencing principles set out in s. 718, s. 718.1 and s. 718.2 of the Criminal Code (with amendments to s. 718.2 enacted in the 2019year) would also apply to the sentencing of an offender who has committed a regulatory offence, since those particular provisions which are based onuniversal principles of sentencing would have general applicability to all offences. [77] Furthermore, s. 718 of the Criminal Code of Canada states that the fundamental purpose of sentencing is to protect society and to contribute,along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions thathave one or more of the following objectives: denunciation, deterrence, separation of the offender from society where necessary, rehabilitation of theoffender, reparations to victims and to the community, promoting a sense of responsibility in the offender [emphasis is mine below]: Purpose and Principles of Sentencing Purpose 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of ajust, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences;

(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation , (iii.2) evidence that the offence was committed against a person, who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to thecommunity should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [78] Additionally, in the textbook entitled, “Stewart on Provincial Offences Procedure in Ontario (3ed.)”, Toronto, Canada: Earlscourt Legal Press,Inc., 2011, at p. 371, the author reiterated that the Provincial Offences Act does not contain a complete sentencing code, including sentencingprinciples, but that the common-law and criminal law jurisprudence on sentencing also applies to regulatory or provincial offences.

Accordingly, theauthor indicates that a sentencing court in determining an appropriate sentence for a regulatory offence would have to consider such factors as generaland specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity andconsequences of the offence, any rehabilitation and remorse, proportionality, the offender’s record, and an offender’s ability to pay a fine [emphasis ismine below]: Unlike the Criminal Code, the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles.

Instead, commonlaw and criminal law jurisprudence applies. For example, s. 718.1 of the Criminal Code provides that sentencing must be proportionate to the gravityof the offence and the degree of the responsibility of the offender. This principle applies equally to sentencing for a provincial offence. In addition, to the statutory provisions and sentencing jurisprudence, the court will consider general and specific deterrence, aggravating ormitigating factors (such as a plea of guilty), the protection of the public, de

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