R. v. Mercer, 2018 NLSC 219

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Mercer , 2018 NLSC 219 Date : November 6, 2018 Docket : 201701G6772 HER MAJESTY THE QUEEN v. STEVEN RYAN MERCER Before: Justice William H. Goodridge Edited transcript of oral reasons for judgment Place of Hearing: St. John's, Newfoundland and Labrador Date of Hearing: November 2, 2018 Date of Oral Decision: November 2, 2018

Summary: The offender was involved in a street race that continued for eight kilometers and ended with a fatal collision. He was sentenced to four years (less credit for time served) for criminal negligence causing death while street racing, two years concurrent for criminal negligence causing bodily harm while street racing, and ninety days concurrent for breach of probation. Appearances:

Richard L. Deveau Counsel for the Crown Randolph J. Piercey, Q.C. Counsel for the Accused Authorities Cited: CASES CONSIDERED: R. v. Nusrat, 2009 ONCA 31; R. v. Nasogaluak, 2010 SCC 6; R. v. O’Leary, 2015 ONSC 6347; R. v. Lam,(2003), (ON CA), 180 C.C.C. (3d) 127, 19 C.R. (6th) 377 (Ont. C.A.); R. v. Hodder, [2012] 322 Nfld. & P.E.I.R.243, 33 M.V.R. (6th) 308 (N.L. Prov. Ct.); R. v. Badhwar, 2013 ONCA 266; R. v. Nusrat, 2009 ONCA 31; R. v. Bilodeau, 2013 QCCA980; R. v. Kippax, 2010 ONSC 2529; R. v. Cassady, 2016 ONSC 6063; R. v. Badhwar, 2009 CarswellOnt 9061, 88 W.C.B. (2d) 459(Ont. Sup. Ct.); R. v. King, (N.L.

Prov. Ct., September 2017); R. v. Bourgault, 2014 QCCA 273; R. v. Kelly, [1997] J.Q. No. 2360, 28M.V.R. (3d) 272 (Q.C.A.); R. v. Summers, 2014 SCC 26; R. v. Safarzadeh-Markhali, 2016 SCC 14 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Highway Traffic Act, R.S.N.L. 1990, c. H-3 REASONS FOR JUDGMENT SENTENCING goodridge, j.: INTRODUCTION [1] On July 7, 2016, Steven Mercer engaged in a reckless and dangerous street race that ended with the death of 18-year-oldHannah Thorne and the serious injury of 81-year-old Gertrude Thorne. Mr.

Mercer was charged, and, after a five day trial, convicted forcriminal negligence causing death while street racing, criminal negligence causing bodily harm while street racing, and failure to complywith the terms of a probation order. ISSUE [2] Today I must decide on the appropriate sentence for these crimes. The decision is guided by the various objectives ofsentencing set out in the Criminal Code, R.S.C. 1985, c. C-46. One of the objectives is to ensure that the ultimate sentence communicatesto Mr. Mercer, and members of the public, that they must refrain from this type of criminal activity.

Revenge is not an objective, and isnot a factor in sentencing. Regardless of the ultimate sentence the Court imposes, it will not make matters right for the Thorne family orHannah’s friends. This is impossible, and it is not the intent of a sentence, or the role of the Courts. We cannot reverse this tragedy, orcompensate for Hannah’s life. Lives are worth much more than any sentence could ever account for.

BILL OF INDICTMENT [3] The criminal charges for which convictions were entered include: • Count #3 --- On or about the 7 day of July, 2016, at or near New Harbour, Newfoundland and Labrador was criminally negligent inthe operation of a motor vehicle in a race with another motor vehicle and did thereby cause the death of Hannah Thorne, contrary tosection 249.2 of the Criminal Code; • Count #4 --- On or about the 7 day of July, 2016, at or near New Harbour, Newfoundland and Labrador was criminally negligent inthe operation of a motor vehicle in a race with another motor vehicle and did thereby cause bodily harm to Gertrude Thorne, contrary tosection 249.3 of the Criminal Code; • Count #5 --- On or about the 7 day of July, 2016, at or near New Harbour, Newfoundland and Labrador did, while bound by aprobation order dated the 18th day of March, 2016, fail without reasonable excuse to comply with such order, to wit, keep the peace andbe of good behavior, contrary to

section 733.1(1) of the Criminal Code. FACTS [4] Hannah Thorne had just graduated from high school. She had a summer job in Carbonear and her grandmother, GertrudeThorne, was driving her home from work. It was approaching 5:30 p.m. on that summer evening, as they turned onto the New HarbourBarrens Road (Route 73) and headed west toward Trinity Bay. [5] Around that same time Mr. Mercer, driving a Chevrolet Cobalt, was engaged in a high-risk street race against Brian King,driving a Ford F-150. These two men had also just turned onto the New Harbour Barrens Road, but at the opposite end, and were

continuing their race in an easterly direction across the barrens. The overall pattern of the race involved the two drivers, often bumper-to- bumper, charging up at high speed behind other vehicles, passing in tandem, and then quickly disappearing in the distance. Witnesses, at different points along the route, observed Mr. Mercer and Mr. King passing in no passing zones, as they jockeyed for the lead position. The jockeying for lead position also included dangerous side-by-side driving within a no passing zone, and while approaching a hill.

The head on collision that killed Hannah Thorne, and injured Gertrude Thorne, occurred during one of these high speed, bumper-to-bumper, passing attempts. Mr. Mercer’s rate of speed in the last few seconds preceding the fatal collision was at least 130 kilometres per hour. The lawful speed limit in the area was 80 kilometres per hour. [ 6 ] During the race, the two drivers remained in close proximity, one in front of the other, with Mr. Mercer most often in the lead position. Mr.

Mercer’s reckless driving included illegal passing maneuvers on at least three occasions over the final 3.5 kilometre stretch before the collision. The passing maneuvers occurred on turns or approaching hills where it was not possible to observe for oncoming traffic. On two passing manoeuvres during the race, there were close encounters with oncoming traffic.The passing of other vehicles, at high speeds, created an extremely high risk factor for the exact event that occurred, a fatal head-on collision. [ 7 ] Mr. Mercer was not the driver who crashed into the Thorne’s vehicle.

He was in the process of making an illegal pass at high speed, with Mr. King bumper-to-bumper behind him. Mr. Mercer managed to complete this illegal passing manoeuvre just in time, as he pulled back into the eastbound lane. Mr. King, tight on Mr. Mercer’s bumper, had no time to pull right. The head on collision with the west bound Thorne vehicle resulted. [ 8 ] In the circumstances of this criminal activity, I do not distinguish the degree of culpability between Mr. Mercer and Mr. King. Mr. Mercer is equally culpable even though he did not crash into the Thorne vehicle.

The close encounters with on coming traffic, over the prior eight kilometres of the race, would have sounded alarms in Mr. Mercer’s mind that a head on crash was inevitable if this race continued. Mr. Mercer ignored these close encounters, ignored the risks to himself and others, and egged on Mr. King by his continued participation. Mr. Mercer had full knowledge of the grave risks created by his continued participation in this race. objectives of sentencing [ 9 ] As alluded to above, there is an obligation on judges to consider the objectives of sentencing that are set out in the Criminal Code .

Even after considering these objectives, the sentencing process remains a highly discretionary and individualized process. The main objectives of sentencing are set out in

section 718 of the Criminal Code . These include denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice, and the promotion of responsibility in offenders. The weight given to each sentencing objective can differ, but in this type of matter, I place emphasis on denunciation and deterrence (general and specific). The sentence must be of sufficient duration to send a strong message to Mr. Mercer, and like-minded people, condemning the behavior, and serving notice that street racing will not be tolerated. I n R. v.

Nusrat , 2009 ONCA 31 , at paragraph 65 , the Court stated that, for street racing crimes “the objectives of general deterrence and denunciation must be paramount.” [ 10 ] The ultimate sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender —

section 718.1. Whatever weight I give to the sentencing objectives, the resulting sentence must still respect this principle of proportionality. Proportionality means that a sentence should not exceed what is just and appropriate given the moral blameworthiness of the offender and, the gravity of the offence (see paragraph 42 of R. v. Nasogaluak , 2010 SCC 6 ). [ 11 ]

Section 718.2 of the Criminal Code , sets out several other sentencing principles that the Court shall consider: • a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender …; • a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; • where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; • an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and • all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered … CIRCUMSTANCES OF Offender AND OFFENCE [ 12 ] Mr.

Mercer is a 31-year-old single man. He has good family support, as evidenced by their presence throughout the trial. Defence counsel advises that Mr. Mercer is a carpenter and has a good work history. There is one prior criminal conviction, but for an unrelated matter. There are four prior Highway Traffic Act , R.S.N.L. 1990, c. H-3 convictions, including three for speeding. All speeding infractions occurred within the five years preceding this fatal collision, and the most recent was just three months prior. [ 13 ] This morning, at the close of submissions from counsel, I asked Mr.

Mercer if he had anything to say before I decided on the fit sentence.

He replied, “No thanks.” POSITION OF THE PARTIES [ 14 ] The Crown seeks a sentence of 4.5 to 5 years for criminal negligence causing death while street racing, 2 to 2.5 years for criminal negligence causing bodily harm while street racing (concurrent), ninety days for breach of the probation order (concurrent), and a 10 year driving prohibition. [ 15 ] The Defence takes no issue with the Crown’s suggested sentences, and concurrency, for counts 4 and 5, but argues that a fit sentence on count 3 (criminal negligence causing death while street racing) should be 2.5 years.

The Defence counsel takes no issue with the Crown’s suggested 10-year driving prohibition.

Analysis Maximum Sentence [16] The maximum penalty for criminal negligence causing death while street racing is life imprisonment. It is one of the moreserious offences in the Criminal Code. The maximum penalty for criminal negligence causing bodily harm while street racing is 14years. [17] Under subsection 259(3.2) and (3.3) of the Criminal Code, a driving prohibition is mandatory. For a first offence the maximumis 10 years plus the sentence duration.

Mitigating and Aggravating Factors [18] There are no mitigating factors. [19] There are many aggravating factors: • prior record of speeding infractions under the Highway Traffic Act; • length of the race --- at least 8 kilometres; • during the race there were at least four dangerous passing maneuvers in areas marked by solid lines (no passing zones) and wherethe view for coming traffic was restricted due to hills or turns; • Mr.

Mercer was not deterred by prior close encounters with oncoming traffic; • very high speed for nature of road --- at least 50 kilometres per hour above the posted limit in the last seconds preceding thecollision; • race occurred at a time of day when traffic was at a peak; • Mr. Mercer failed to remain at the scene of the collision; and • the offences occurred less than four months following a probation order to “keep the peace”. [20] The preponderance of aggravating factors place this matter toward the higher end of the broad sentencing range for thesecrimes.

Victim Impact Statements [21] Levi Thorne, Hannah’s father, filed a victim impact statement. He said that it is not possible to describe in words the degree ofpain that he feels every day. It has affected his ability to work, to socialize, and to continue living. Holidays and special occasions,normally happy family times, are now sad reminders of Hannah’s absence. [22] Gail Thorne, Hannah’s mother, read her statement aloud in court. She wonders how she will be able to go forward in life. Hergrief, as was evident, is unbearable. It feels to her that she is dying inside.

Her relationship with Hannah was obviously an extremelyclose one, something more than the usual mother-daughter relationship. [23] Gertrude Thorne has died since the collision, but from unrelated causes. Prior to her death, Gertrude prepared a writtenstatement in which she described the horror of watching her granddaughter die before her eyes. The resulting emotional traumapreoccupied her mind after that day. Apart from the emotional trauma, Gertrude Thorne suffered serious physical trauma, which includedmultiple bone fractures.

She remained in hospital for nine weeks and continued convalescing at home for many more weeks. [24] Other close friends and relatives gave similar stories about the difficulty in coping with the aftermath of this tragic loss of life. I read those other statements when they arrived at the Court Registry yesterday afternoon. All of the statements combined make it clearthat what happened on July 7, 2016, has left a trail of devastation too significant to describe in a way that would give justice to the friendsand family of Hannah. These statements can only give us a small glimpse into these consequences.

Authorities [25] I said earlier that one of the principles of sentencing is that a sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances. Each side has presented me with several sentencing decisions, whichinvolved somewhat similar circumstances. I will summarize briefly the main facts, and ultimate sentences for a few of these decisions.As will become apparent, there is a wide sentencing range, from a low of 18 months to a high of 72 months. The cases do not easilyreconcile.

As a general statement, cases where there are few or no mitigating circumstances are toward the higher end of this broadrange. [26] In R. v. O’Leary, 2015 ONSC 6347, Conlan, J. imposed a sentence of 18 months for one count of dangerous driving causingdeath while street racing and 18 months concurrent for one count of dangerous diving causing bodily harm while street racing. The 20-year-old first time offender, with impeccable character references and good prospects, participated in a street race on a relatively busythoroughfare.

His speed was 30-40 kilometres per hour above the posted limit in an 80 kilometres per hour zone. There was a verypositive pre-sentence report. [27] In R. v. Lam, (2003), (ON CA), 180 C.C.C. (3d) 127, 19 C.R. (6th) 377 (Ont. CA), the Ontario Court ofAppeal upheld a 24 month sentence for criminal negligence causing death. Labrosse, J.A., writing for a unanimous panel, found (at

paragraph 14) that “w hile the sentence imposed could have been more substantial, the case law does not support a conclusion that the sentence imposed is demonstrably unfit.” This was not a street racing case but, rather, was a case of extremely reckless driving. The offender was going 170 kilometres per hour in a 70 kilometre per hour zone. Several mitigating factors were in play: short duration of high speed, no significant driving record, impeccable background and character. Mr.

Mercer does not have the benefit of similar mitigating factors and, the circumstances of his conduct are more serious. [ 28 ] In R. v. Hodder , [2012] 322 Nfld. & P.E.I.R. 243, 33 M.V.R. (6th) 308 (N.L. Prov. Ct.) , Gorman, P.C.J. imposed a sentence of 30 months for dangerous driving causing death and 18 months (concurrent) for dangerous driving causing bodily harm. This was not a criminal negligence case, and not a street racing case. The facts involved a high-speed passing attempt in a no passing zone.

The offender’s vehicle made contact with the vehicle he was passing, causing his vehicle to roll over several times, until it entered a pond. One of the occupants drowned and another was injured. In addition, there were mitigating factors in play (youthful offender and guilty plea) that are not present for Mr. Mercer. [ 29 ] In R. v. Badhwar , 2013 ONCA 266 , the Ontario Court of Appeal upheld a 30 month sentence (less credit for time served) imposed at trial following conviction for criminal negligence causing death while street racing.

Although the Court did not alter the sentence, Moldaver, J.A., writing for a unanimous panel, stated, “I think it was lenient”. The street race was of 40 kilometres duration, and on a busy highway. [ 30 ] In R. v. Nusrat , 2009 ONCA 31 , the Ontario Court of Appeal overruled the trial judge’s imposition of a two year conditional sentence, and imposed a jail term of 30 months , for criminal negligence causing death while street racing. The offender was a 19-year- old, with two prior speeding infractions, and he pleaded guilty.

The race took place on a busy highway and continued over a distance of 40 kilometres. [ 31 ] In R. v. Bilodeau , 2013 QCCA 980 , the trial judge, dealing with an 18-year-old offender, imposed a global sentence of 36 months for two counts of dangerous driving causing death while street racing. The sentence duration was not part of the appeal. The two kilometre race, at speeds reaching 137 kilometres per hour, ended with a crash that killed two passengers in the offender’s vehicle. The offender had a prior record for speeding violations. [ 32 ] In R. v.

Kippax , 2010 ONSC 2529 , Baltman, J. , imposed a sentence of 36 months , concurrent on each of three charges: dangerous driving causing death, and dangerous driving causing bodily harm (x2). The offender and a friend were competing for lead position, and driving at excessive speeds. The offender had just made a dangerous maneuver as he accelerated from a green light at a busy intersection. His friend “travelling lockstep” behind, lost control and spun into an innocent third party vehicle. Death and serious injuries resulted to the occupants of the third party vehicle. [ 33 ] In R. v.

Cassady , 2016 ONSC 6063 , Heeney, J., imposed a sentence of 42 months for one count of criminal negligence in operation of a motor vehicle, causing death. The 22-year-old offender was travelling at more than 100 kilometres per hour over the posted speed limit when he struck the rear of the victim’s motorcycle. There were mitigating factors in play for Mr. Cassady, including a guilty plea, youthful age, expression of remorse, acceptance of responsibility, no record of prior driving infractions, and no risk of reoffending. There are no similar mitigating factors for Mr. Mercer. [ 34 ] In R. v.

Badhwar , (2009) 88 W.C.B. (2d) 459 (Ont. Sup. Ct,) Glass, J., imposed a global sentence of 42 months (less credit for time served) calculated as follows: 30 months, less credit for presentence custody, in relation to one count of criminal negligence causing death while street racing plus 12 months consecutive for failing to stop at the scene of the accident. The offender participated in a street race on a busy highway, sometimes hitting speeds of 170 kilometres per hour. [ 35 ] R. v. King (N.L. Prov.

Ct., September 2017) is the unpublished oral decision involving the other participant in this street race, Brian King. [1] Short, P.C.J., imposed a sentence of just over 46 months for criminal negligence causing death while street racing, 18 months for the criminal negligence causing bodily injury while street racing (concurrent), and 90 days for breach of probation (concurrent). There were mitigating factors in play for Mr. King, including his guilty plea, and his expression of remorse. There are no similar mitigating factors for Mr. Mercer. [ 36 ] In R. v.

Bourgault , 2014 QCCA 273 , the Quebec Court of Appeal upheld a global sentence of 72 months (less credit for time served) for dangerous driving causing death while street racing and dangerous driving causing bodily harm while street racing. The offender, accelerating from a red light, engaged in a street race that ended with a crash after only 190 metres. The maximum speed reached was 39 kilometres per hour above the posted limit. This sentence is at the high end of the wide range, and involves circumstances less compelling than the circumstances present for Mr. Mercer. [ 37 ] R. v. Kelly , [1997] J.Q.

No. 2360, 28 M.V.R. (3d) 272 (Q.C.A.) , Quebec Court of Appeal upheld a global sentence of 72 months , imposed following a guilty pea, for three counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. The breakdown included three six-year concurrent sentences for the ‘causing death’ offences, and a 15 month concurrent sentence for the ‘causing bodily harm’ offence. The offender ran a stop sign and collided with another car killing three of the passengers and injuring the driver. What is a fit sentence for Mr.

Mercer? [ 38 ] The circumstances of the current offences are extremely serious considering the many aggravating factors and the absence of mitigating factors. Mr. Mercer’s personal circumstances offer little to favour a reduction in a sentence.

For those reasons, and guided by the various authorities above, I impose a custodial sentences as follows: • Count 3 --- criminal negligence causing death while street racing --- 48 months less credit for pre-sentence custody; • Count 4 --- criminal negligence causing bodily harm while street racing ---- 24 months concurrent; and • Count 5 --- failure to comply with the terms of a probation order --- 90 days concurrent.

[ 39 ] I acknowledge that this is higher than the sentence imposed in R. v. King (supra.). This is appropriate considering the absence of mitigating factors for Mr. Mercer, and my earlier finding that he is equally culpable with Mr. King. [ 40 ] I have allowed concurrency on Count 5 because of totality, and with the consent of the Crown. Normally it would be consecutive and not considered part of the single criminal adventure. [ 41 ] The credit for pre-sentence custody is 12 days (based on 1.5 times the actual time served).

The Crown agrees that this enhanced credit is appropriate considering the principles discussed in R. v. Summers , 2014 SCC 26 and R. v. Safarzadeh - Markhali , 2016 SCC 14 (1) to account for loss of eligibility for parole and early release, and (2) to account for the harshness of the conditions during pre- sentence custody. The net sentence remaining is three years and 353 days. [ 42 ] In addition to the custodial sentence, I impose a DNA Order pursuant to

section 489.051 of the Criminal Code , and a 10 year driving prohibition pursuant to section 259(3.3) of the Criminal Code. [ 43 ] I thank both counsel for their helpful submissions and the authorities that each filed to guide me in this process. [ 44 ] Finally, I say to you Mr. Mercer that this sentence is not meant to crush you. The hope is that rehabilitation will occur, and that you will become a law-abiding member of our society once you have served this sentence. __________________________ WILLIAM H. GOODRIDGE Justice