R. v .Young, 2011 NSPC 66

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v .Young, 2011NSPC 66 Date: September 22, 2011 Docket: 2263592 Registry: Sydney Between: Her Majesty the Queen v. Aaron Young LIBRARY HEADING _______________________________________________________ DECISION ON SENTENCE Judge: The Honorable Judge A.P. Ross Heard: September 15, 2011 Date of Decision: September 22, 2011 Charge: s. 252(1.2) Criminal Code Counsel: Diane McGrath, Crown Attorney Steve Melnick, Defense Counsel Patricia Fricker-Bates, Defense Counsel

Summary The accused driver struck a man on the travelled portion of a dark stretch of highway near Donkin, Nova Scotia. He attempted an emergency brake but hit the victim with considerable force, damaging the front end and smashing the windshield. The accused turned momentarily into a driveway but then left the scene. The victim, 69, who was on the road searching for his dog, was killed instantly. The accused put his vehicle in a garage and made misleading statements about the nature of his involvement.

After a public appeal, police obtained information which led to a search of the garage and a forensic matching of the vehicle to the collision. There was no evidence from which to infer any underlying criminal misconduct such as impairment or recklessness, although the accused was driving without insurance and license. The accused was 21, poorly educated and unemployed. He had taken steps since the incident to overcome a drug addiction. He entered a plea of guilty.

Decision The accused was effectively given an 18 month jail sentence, 9 of which he had served on remand, leaving 9 months to be served from the date of sentence. A three year driving prohibition was also imposed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation : R. v. Young, 2011 NSPC 66 Date : September 22, 2011 Docket : 2263592 Registry : Sydney R . v. Aaron Young DECISION ON SENTENCE Judge : The Honorable Judge A.P. Ross Heard : September 15, 2011 Date of Decision : September 22, 2011 Charge : s. 252(1.2) Criminal Code Counsel : Diane McGrath, Crown Attorney Steve Melnick, Defense Counsel Patricia Fricker-Bates, Defense Counsel [ 1 ] At 5:00 p.m. on December 9, 2010 Mr. Patrick Cadegan was struck and killed by a car driven by Aaron Young. Mr.

Young, the accused in this case, did not stop to render assistance or identify himself, leading to a charge that he on December 9 th , 2010, at Lingan, Nova Scotia, having control of a vehicle: to wit a 2002 Nissan Sentra, that was involved in an accident with Patrick Cadegan, with intent to escape civil or criminal liability, knowing that bodily harm had been caused to another person, did fail to stop his vehicle, give his name and address and offer assistance, contrary to s.252(1.2) of the Criminal Code of Canada [ 2 ] This being a criminal court, I do not know whether the accused has been sued civilly for negligence.

I do know that he has not been charged with criminal negligence causing death. However that may be, Mr. Young, by pleading guilty to the offence above, admits that his purpose in leaving the scene was to avoid legal liability. When a person does that he commits a criminal offence under s.252. When such person knows that the victim of the collision suffered bodily harm, he commits an even more serious offence under subsection (1.2). Facts [ 3 ] Mr. Cadegan’s dog had gotten off its rope in the yard, and so he went in search of it in his truck.

He proceeded northerly only a short distance from his house before stopping. He parked the truck at the curb, exited, and walked across the highway into the southbound lane of traffic. At this time of year, and in the absence of street lights, it was dark. Perhaps for this reason he left the high beams of his vehicle on. [ 4 ] Mr Young, the accused, was driving southerly on Lingan Road in a 2002 Nissan Sentra. His car struck Mr. Cadegan with tremendous force. The collision caused heavy damage to the front end of the vehicle and smashed the windshield. Mr.

Cadegan was, a short time later, pronounced dead at the scene. It is a virtual certainty that he was killed instantly. He was 69 years old. [ 5 ] The accused was 21 years of age. The vehicle was his father’s. It was unplated and uninsured. Mr. Young had no driver’s license at the time. These apparent contraventions of the Motor Vehicle Act do not reflect well on his respect for the law, although it is important to note that they are not causative factors in Mr. Cadegan’s death. While it is true to say that Mr.

Young should not have been on the road, the same cannot be said of the GMC truck which was following immediately behind him. It is possible Mr. Cadegan would have suffered the same fate regardless.

[ 6 ] The driver of the GMC observed the Nissan attempt an emergency stop. According to the agreed facts Mr. Young “slammed on his brakes, almost coming to a complete stop”. The pavement was dry. There is no indication of excessive speed on Mr. Young’s part. There is no indication of drinking. Although one of the brake pads on the Nissan was worn down, there is no evidence that this affected the accused’s ability to avoid the collision. It is not known whether the accused was able to apply his brakes before striking the deceased. [ 7 ] After hitting Mr. Cadegan, Mr.

Young pulled away quickly and drove a short distance down the highway. He pulled into a driveway momentarily but then backed out and continued southbound, away from the scene, now following the GMC truck which had just been behind him. The driver of that truck, who witnessed the braking, was apparently unaware that anyone had been struck. [ 8 ] The fact that the accused panicked is not proof of negligent driving. As noted above, I do not know whether Mr. Young might be adjudged guilty of some degree of civil negligence. I must presume, however, that he is not culpable in any criminal sense for the death of Mr.

Cadegan. [ 9 ] The accused’s actions in leaving the scene, coupled with the intent to avoid legal liability of some sort (whether he was actually liable or not), all the while knowing that the person he struck was, at the very least, seriously injured - this constitutes the offence. What he did up to the point of impact – his driving, his state of mind, etc. – these play no

part in his sentence. [ 10 ] What does bear on his sentence, however, is his conduct in the days following. While these attempts to hide evidence and deflect suspicion are not elements of the s.252 offence as such, they are a continuation of the same sort of behavior that he displayed in the moments following the fatal impact. They are aggravating factors. [ 11 Mr. Young hid the vehicle in his father’s garage. In conversation with his girlfriend that same evening, he told her three different stories about how the damage was occasioned – first that he had hit a deer, second that he was following another vehicle which initially struck a pedestrian, throwing him back onto his (Young’

s) car, and third that another vehicle had hit a pedestrian after which he (Young) “clipped him on the leg”. He told his girlfriend that he knew he should have stopped but instead panicked and drove away. [ 12 ] Police appealed to the public for help in locating the driver. They received information which led to a search of the garage. It was obvious that the vehicle they located was involved in the accident. There was the damage to the front end and windshield, noted above, as well as blood on the hood and the passenger side. Debris located at the accident scene matched missing pieces from the subject vehicle.

Confronted with this, Mr. Young continued to lie about his involvement. He claimed the damage had occurred three months before. After police finished interrogating his girlfriend on December 16 th , Mr. Young began to relent, although he continued to suggest that the GMC truck was also “involved.” The accused was soon arrested and, on December 20 th , charged with the above offence. [ 13 ] At the time of the offence the accused was on probation for a charge of possession of stolen goods. He had a relatively minor record for shoplifting, mischief and breaches.

Previous sentences included a $100 fine, a conditional discharge, and probation. [ 14 ] The accused was remanded into custody until February 8, 2011 at which time he was released on a recognizance. Three days later he was in custody again, charged with breaching his curfew. From then until the present date he has been on remand at the Cape Breton Correctional Centre. [ 15 ] The accused made a number of court appearances over the course of the intervening months. He had legal counsel from the outset who, understandably, wanted to obtain disclosure of the evidence, analyze it, and confer with the accused about it.

On July 13, 2011 Mr. Young elected Provincial Court and pled guilty before me to the s.252 offence from December and the charge of breach of recognizance from February. He consented to remand until the date of sentence. A presentence report was ordered. Kathleen Cadegan, recently widowed, submitted a victim impact statement. Submissions were heard on September 16 th and I adjourned one week for decision.

The position of the parties [ 16 ] Crown submits that conduct of this sort justifies the imposition of a jail sentence in the range of three years. [ 17 ] Defence submits that a fit sentence would be in the range of fifteen to twenty-one months. [ 18 ] The accused has spent a total of 273 days on remand, the equivalent of 9 months. I have determined, in accordance with recent legislation governing how remand time should be credited at sentence, that this accused should receive credit on a one to one basis.

I will first decide what total sentence is fit and appropriate and then deduct nine months from it in order to determine what (if any) additional jail time is warranted from this day forward. When one accounts for the remand time, the Crown’s submission is for a further 27 months in jail, whereas the Defense submission is for additional jail time of 6 to 12 months. Materials filed at sentence [ 19 ] The accused is a young man with limited education and few work skills. He currently has no job and no income. He describes having a “good upbringing”. His parents both worked; they are now divorced.

He began to abuse drugs as a teenager but at 20 enrolled in a methadone recovery program. According to his mother “he was just getting his life back on track” at the time of the offence. In March of this year the methadone was discontinued and he thus considers himself to be “drug free” for the past two years. He is anxious to deal with this sentence and move on to more positive things.

He expressed remorse and regret to the probation officer who prepared the pre-sentence report, saying he “feels horrible” about what he did and thinks about it every day. [ 20 ] The wife of the deceased filed a statement expressing the lasting impact of that tragic moment. She gives a brief sketch of the family history and speaks about “hole in our lives”. While acknowledging that if had he stopped the incident may have been considered a tragic accident, she says “when you keep going and never look back it is sad, sick and unbelievably disgusting.” She expects Mr. Young

“should be made to pay for this horrible act.” [21] Counsel have filed briefs and have referred to cases dealing with the same offence. They are sufficiently similar to provideguidance, but there are important differences as well. Case law [22] In R. v. Doucet [2009] A.J. No. 1401 the Alberta Court of Appeal upheld a sentence in the range which the Crown isrecommending here. Doucet was a professional truck driver who drove on the wrong side of the road and collided with an on-comingvehicle. While the injured driver attended to her critically injured daughter, the accused crawled out of his truck and walked away.

Hepled guilty to leaving the scene and to refusing a breathalyzer demand. Police found empty liquor bottles in his truck and noted a strongsmell of alcohol from him when he was arrested two hours later. He was sentenced to 28 months in jail and given a three year drivingprohibition. [23] Importantly, the appeal court stated at para. 16 that “the reasonable inference in this case is that the appellant fled to avoid chargesof impaired driving causing injury or death.” Sentences for such an offence are often measured in years.

In the case before me theCrown submits that a person fleeing the scene to avoid liability should not receive a sentence less than one who stays behind and ownsup to his responsibilities. In contrast to Doucet, however, there is no evidence that Mr. Young was impaired or otherwise drivingnegligently. There is thus no basis on which to connect Mr. Young’s sentence for leaving the scene with the sentence for anotheroffence which he avoided by leaving. [24] In R. v. Meads [2010] A.J. No. 436 the 23 year old accused left a party in the early morning and struck a cyclist on the outskirts ofEdmonton.

At para. 4 the judge writes “the cyclist, who himself was heavily intoxicated, was killed and was left to die in the ditch.” Itis unclear from the decision whether the cyclist might have been saved if the accused had stopped to render assistance. The courtpointed to the “significant amount of alcohol” Meads had consumed before driving and “the extraordinary lengths to try to suppress hisinvolvement” as factors justifying the imposition of a two year jail sentence and three year driving prohibition. [25] Meads went to greater lengths that Mr. Young to hide his involvement. Mr.

Young put the vehicle in his father’s garage, and madeconflicting statements to police and others about his involvement. Meads scrubbed his vehicle clean and dismantled the front portion inan attempt to destroy evidence. Meads also had a worse driving record than Mr.Young; it included an impaired driving and a recentconviction for careless driving. Meads pled not guilty and refused to accept responsibility, even after trial. [26] In R. v. Foley [2010] N.S.J. No. 641 we have a Nova Scotia case in which the accused struck a horse-drawn wagon, killing thedriver.

The vehicle was uninsured, and the headlights were not working properly. This 28 year old offender was given a 12 monthsentence followed by probation, and three year driving prohibition. After the crash he attempted to hide his vehicle by covering it with atarp. He then returned to the scene, walked by the area, entered a friend’s vehicle and spoke with his girlfriend. Sometime later – it isnot specified in the decision – he turned himself in to the police. Crown sought a 5 to 7 year prison sentence, speculating that theaccused could well have been charged and found guilty of criminal negligence causing death.

Justice MacAdam noted at para. 23 thatthe focus of a sentencing is the conduct that resulted in the offence actually committed, saying “the degree of responsibility relates to theoffence for which he is being sentenced, not for some other potential or possible offence.” [27] In R. v. West the accused struck a woman in a wheelchair as she crossed an intersection in Fredericton, N.B.. It was rainingheavily and it was dark. At para. 7 the court states “It appears West was travelling through a green light, albeit fast, but that there was noalcohol involved, and no evidence of negligence.

Had Miss West stopped she may well not have been charged, and this would have beenconsidered a tragic accident.” West and the passengers went to her apartment for the night. The next day West announced to the othersthat she had decided not to turn herself in for fear it would “ruin her life.” West’s father then became involved in an elaborate scheme toavoid detection which involved moving the vehicle to other local addresses. On his daughter’s behalf he told the passengers to “keeptheir mouths shut.” They discussed plans to move the vehicle out of the province.

Despite public appeals their identities remained asecret for over a month. Eventually the accused took the vehicle to an auto shop for repairs. She concocted a story about the cause of thedamage. The owner advised police that he thought the vehicle had been in a collision of some sort. Forensic examination tied thevehicle to the victim’s wheelchair.

Eventually all passengers were tracked down and gave statements about what happened. [28] West, who was 19 at the time of the accident, was charged not only with leaving the scene under s.252 but also with attempting toobstruct the course of justice by destroying evidence relating to a criminal offence contrary to s.139 of the Criminal Code. Presumablythe latter charge was laid because of her lengthy and concerted efforts to avoid detection. For leaving the scene she received an 18month jail sentence; for obstruction of justice a further 12. In West, at para. 32, the court remarks on the similarity with R. v.

Zhang [2007] B.C.J. No. 1530 – “As in this case there was nodangerous driving prior to the accident. Zhang hit a pedestrian who was crossing with his daughter on a marked crosswalk against thetraffic and pedestrian control devices. Mr. Zhang was not speeding (and) . . . was not under the influence of alcohol of drugs.” Heimmediately drove away at high speed. Zhang was autistic and predisposed to impulsive responses. He was 21 with no previous record. He was sentenced to 11 months in jail for leaving the scene. [29] In R. v. Johnston 2003 ABCA 62 , [2003] A.J.

No. 296 the Alberta Court of Appeal upheld conviction and sentence of adriver who struck a pedestrian, causing a large hole to be punched out of the windshield, yet made no attempt to stop. The victim waskilled instantly. Flight was motivated by a desire to escape consequences of his actions. He lied to friends, saying he’d hit a deer. Hewent to trial but his testimony was disbelieved. He was convicted and received a 6 month sentence. As there is no mention in thedecision of aggravating factors (speeding, carelessness, inattention, drinking, etc.) one assumes there were none. Discussion

[30] We have no clear idea of what motivated Mr. Young to flee the scene. He says he panicked, and this may be as much as he canunderstand of it himself. Undoubtedly he was influenced by the sheer enormity of what had happened. Perhaps the fact that he wasdriving his father’s car, or the fact it was uninsured, or the fact he had no license, played a role. [31] Crown asks the court to emphasize deterrence and denunciation. Defense asks the court to emphasize rehabilitation.

While thelatter should always be on the court’s radar, particularly for younger offenders with prospects for improvement in their behavior, theproblems facing Mr. Young – drug addiction, lack of education –did not contribute in any obvious sense to the crime he committed. Stated another way, I am not convinced that if he had beaten his addiction and improved his education prior to the fatal events ofDecember 9, 2010 he would have stopped his vehicle. I think, rather, that restraint is the more relevant principle. Many of the pointsmade in the defense submission still apply, but under that heading.

In the end I am left to consider what length of sentence givessufficient weight to deterrence and denunciation, without being unduly punitive. [32] Whether assessing guilt, or determining sentence, a court must not confuse coincidence with cause. R. v. Brogan 2008 NSPC 42, [2008] N.S.J. No. 313 was a case from the local area where the driver was, by his own admission, driving while impaired. Yetthe judge who tried the case was not convinced that this impairment caused the fatal collision with the boy on the bicycle. Expertwitnesses, reconstructing the events, concluded that the collision was unavoidable accident.

A reading of the case leads one to think thatthe collision probably would have occurred even if the driver had been completely sober. [33] Crown submits that “the accused left Mr. Cadegan to die on the side of the road.” It is important to consider in what sense thismay be true, and in what sense it is not. Mr. Cadegan would not be alive today if Mr. Young had stopped and returned to the scene. Yetit is also obvious that a person in Mr. Young’s shoes should exhaust every possibility of rescue by returning and reporting, no matterhow faint the hope of saving the person’s life.

Even if the driver is convinced that the person cannot be helped, the law requires him toimmediately identify and hold himself to account. Breach of these basic legal and moral duties is rightly regarded with contempt, but thethought that this deceased “was left to die” should be tempered with knowledge of the facts. [34] It is natural to feel that Mr. Young’s actions are more serious because someone was killed. I think that indeed the death may givethe case greater significance, but if so it is in the sense that public attention has been drawn to it.

Whatever “message” the sentencesends out to others is thus more likely to be heard. Possibly, too, it is more likely to “sink in”, given the tragic circumstances. It isimportant for me to remember, however, that this context does not translate into greater culpability. Neither poor driving, nor impaireddriving, nor the failure to stop and render assistance contributed to Mr. Cadegan’s death. [35] This decision has considered the accused’s pre-accident behavior and his post-accident behavior. With respect to Mr.

Young’sactions prior to the collision I cannot infer any underlying wrongdoing or attribute to him any fault for striking and killing Mr. Cadeganwith his vehicle. With respect to his behavior afterwards, the offence was committed from the moment Mr. Young decided, after turninginto the driveway, to drive away from the scene rather than return to it. Attempts at avoidance in the days subsequent are aggravatingfactors. In extreme cases, such as West, the steps taken are so extensive that a further charge of obstructing justice is laid.

On the otherend of the spectrum would be an accused who committed the offence but then turned himself in to police a short time later. Mr. Young’sbehavior afterwards was disgraceful, but the aggravating factors fall somewhere in the middle of these two extremes. [36] I note here that Mr. Young was charged under the Motor Vehicle Act with driving without a license and driving withoutinsurance. Total fines and costs for these offences, which arise from the same set of events, exceed $1500 dollars. Conclusion [37] A fit and appropriate sentence for Mr. Young on the s. 252(1.2) offence is 18 months incarceration.

He has already spent 9 monthsin jail and so this leaves a further 9 months to be served, starting today. Under s.259 of the Criminal Code he is prohibited from drivinga motor vehicle on any street, road, highway or public place in Canada for 3 years following his release. Dated at Sydney, Nova Scotia, this 22nd day of September, 2011. ________________________________ Judge A. Peter Ross