R. v. Stephens, 2013 ONCJ 575

Information No. 12-06935 12-90000623 Citation: R. v. Stephens , 2013 ONCJ 575 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TYLER STEPHENS R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE P. C. WEST on September 10, 2013, at NEWMARKET , Ontario

APPEARANCES: P. Tait Counsel for the Crown L.

Mark Counsel for Tyler Stephens Tuesday, September 10, 2013 R E A S O N S F O R S E N T E N C E WEST, J. (orally): Introduction [1] On June 7th, 2013, Tyler Stephens entered pleas of guilty to charges that on August 18, 2012 he operated a motor vehicle on DaltonRoad in a manner dangerous to the public and thereby caused the death of Shannon Smith and that on August 18, 2012, while he wasoperating a motor vehicle he was involved in an accident and knowing that bodily harm had been caused to another person, namely,Shannon Smith, and being reckless as to whether death resulted from that bodily harm, he failed to stop his vehicle, with intent to escapecivil or criminal liability.

A pre-sentence report was ordered and sentence was adjourned to September 6, 2013. [2] On September 6, 2013, I heard oral submissions from both counsel. A number of exhibits were filed by both sides including atranscript from June 7, 2013; an accident reconstruction report authored by Constable Steve Higho, York Regional Police; victim impactstatements from Mr. and Mrs. Douglas Smith, Shannon’s grandparents; Bradley J.

Smith, Shannon’s father; Alison Smith, Shannon’smother; Sarah Smith, Shannon’s sister; and Shelby Smith, Shannon’s sister; a pre-sentence report prepared by Joshua Driscoll, datedAugust 22, 2013; a defence sentencing brief; further type-written facts agreed to between Crown and defence; photographs depicting thedamage to Mr. Stephens’ pick-up truck and photographs taken from Google Earth showing Dalton Road, although during the day, butshowing where the plaza was that Mr. Stephens exited and the house where Shannon Smith was standing outside of before she wasstruck and run over by Mr.

Stephens’ vehicle. [3] I have also received extensive casebooks from both Crown and defence and heard oral submissions as to what each party submittedwas an appropriate sentence for Mr. Stephens’ conduct on August 18, 2012. Position of the Parties [4] Both parties agree that the primary, paramount sentencing principles in this case are denunciation and general deterrence. There is very little, if any, disagreement between the parties as to the mitigating and aggravating circumstances surrounding these twooffences.

Both parties agree that the sentence I impose for each offence should be served consecutively and, finally, both parties agreethat I should provide for some credit for the excess of a year of stringent bail conditions that Mr. Stephens was subject to, pursuant to R.v. Downes, (2006), (ON CA), 205 C.C.C.(3d) 488, a decision of the Ontario Court of Appeal. [5] The Crown argues that the appropriate sentence is one of three years in the penitentiary with a five year driving prohibition. Mr. Tait, my recollection is you’re also seeking forfeiture of the Dodge Ram pick-up truck. Is that correct? MR.

TAIT: Yes, Your Honour.

[ 6 ] THE COURT: Defence submits that in view of the relatively youthful age of the defendant and the fact that he comes before the court as a first offender, the appropriate sentence is one of two years less a day in the reformatory with a five year driving prohibition. The defence also suggests that Mr. Stephens would be agreeable to being placed on probation with conditions after the completion of his jail sentence. Factual Background [ 7 ] This is a most tragic case.

An innocent young teenager, 16 years of age, Shannon Smith, was killed as a result of a brief, momentary, irresponsible act by Tyler Stephens; of showing off his new pick-up truck’s power to his friend who was a passenger. [ 8 ] On August 18th, 2012, at approximately 11:05 p.m., Tyler Stephens exited a parking lot where the No Frills store was located on Dalton Road, turned left to proceed southbound just north of a house, a residence, at 20888 Dalton Road in Georgina. Kyle Perry, a close, good friend of Mr. Stephens, was sitting in the passenger seat. As Mr.

Stephens approached the house, he accelerated his pick-up and lost control of it. [ 9 ] Witnesses saw the vehicle exiting the driveway of the plaza at a high rate of speed. The back end began to fish-tail and it crossed the centre line of the four-lane road on two occasions. It then mounted the curb, crossed the sidewalk, and struck Shannon Smith who was standing on the grass in front of the house at 20888 Dalton, waiting for her mother to pick her up. According to the accident reconstruction report, the vehicle travelled about 48 metres after leaving the driveway of the plaza until it struck Ms. Smith.

The dangerous driving lasted for only several seconds. The accident reconstructionist was unable to ascertain the speed that Mr. Stephens was travelling at because the pick-up left the road after he lost control and there was no evidence of braking. [ 10 ] After the collision, Mr. Stephens did not stop his vehicle and instead drove off at a high rate of speed. A witness followed the pick- up and took down the license number. The vehicle was registered to Tyler Stephens. The witness observed the pick-up stop briefly to drop off the passenger by the side of the road. [ 11 ] Mr.

Perry spoke to the police the next morning and advised that Mr. Stephens was trying to show him the power of the pick-up just before the collision. He told the police that Mr. Stephens “punched” the accelerator before he lost control of the vehicle. Kyle Perry saw Shannon Smith struck by the pick-up as it went up onto the grass in front of the house. As the pick-up drove southbound on Dalton Road, Mr. Perry told Mr. Stephens to let him out, but Mr. Stephens kept driving for about a half-minute, then he stopped and Kyle got out of the pick-up. [ 12 ] Mr.

Stephens went to his home after this and the next morning went to his parent’s house to tell them what had happened and to discuss with them what he should do. When he arrived at his parents’ home, the police were already present and he was arrested. [ 13 ] Police examined the pick-up truck and found damage to the right front-end and to the right rear tail light assembly, which was found at the scene of the collision, shown in Exhibits 7A to 7E. After the pick-up truck struck Ms. Smith, it struck the porch of the house in two places before going back onto the roadway proceeding southbound. Ms.

Smith was pushed under the front right corner of the vehicle and had a tire mark across her torso which is consistent with the tread pattern of Mr. Stephens’ truck tires. Ms. Smith died shortly after the collision as a result of the injuries she suffered from Mr. Stephens’ truck striking her. [ 14 ] It was admitted by the defence that Tyler Stephens knew there had been a collision at the house and he knew that Kyle Perry’s comments and actions were inconsistent with just a side-swipe of the house. Although Mr.

Stephens’ position is that he did not know he had run over a person who was injured and eventually died, and I am now quoting from Exhibit 6, which are the additional facts, “he recognized that the circumstances warranted further inquiry, did not stop and did not make such inquiries in circumstances he knew warranted further inquiry.” [ 15 ] It is admitted by Tyler Stephens that he had consumed one beer some time prior to the collision. The Crown concedes that this consumption played no

part in the collision.

Victim Impact Statements [ 16 ] I received five victim impact statements from various members of Shannon Smith’s family, as I have set out above. These statements poignantly set out the scope of the tragedy and the horrific impact of Shannon’s death on those who were close to her. Words cannot adequately describe the depth of the pain and loss experienced by the Smith family and their friends. Nothing I say or do will undo the tragic consequences of the actions taken by Tyler Stephens on August 18, 2012. There is not anything I can do that will make the Smith family whole again or make their grief go away.

The Offender [ 17 ] At the time of the collision, Mr. Stephens was 27 years of age. He had no criminal record. He had a minor record of Highway Traffic Act violations, three in total. On March 25th, 2010 he was convicted for speeding. On February 15th, 2012, in Belleville, he was convicted of speeding and finally, on June 20th, 2012, he was convicted for failing to obey traffic lane lights. [ 18 ] After graduating from high school, Mr. Stephens worked in the construction industry, constructing water mains and sewer systems. In 2004, he injured his back at work and required surgery.

He was prescribed Percocet for his pain. He became addicted to this medication and began purchasing it illegally. He realized at some point in 2005 that he could not continue on the path he was on and he sought help by contacting the Ontario Addiction Treatment Centre in Newmarket. His parents were completely unaware of his addiction difficulties. By 2007, he had been successful in eliminating his use of opiates through a methadone program under the care of Dr. Frank Cusak at the Centre. However, in 2009, he was injured again in an ATV accident where he fractured his collar bone.

He was required to be off work for six months. Once again, he was prescribed Percocet and once again, he became addicted. He re-attended the Centre and was put on the methadone program, which was later switched to Suboxone. Dr. Cusak describes Mr. Stephens as a very good patient who is reliable and attends his scheduled appointments. He is currently on six milligrams of Suboxone, although his dosage has been as low as three milligrams. [ 19 ] Mr. Stephens was working at Toromont CAT as a heavy machinery mechanic at the time of the collision.

He first started working for Toromont CAT as a co-op student from Centennial College in 2007 and was then hired on full-time. He progressed through all three levels of his apprenticeship and has passed all of his requirements and has received his certificate of qualifications in the trade of Heavy Duty Equipment Mechanic. Tyler Stephens is described as a hard-working young man, very knowledgeable with regards to all of the equipment line and is well-respected by his peers and superiors.

His employer values his contribution and has agreed to provide him a leave of absence to accommodate the likely labour interruption as a result of these court proceedings. There are three letters from Mr. Kai Wisch, Product Support Manager, Toromont CAT and a letter from Mr. Paul Della Penna, Mr. Stephens’ supervisor, which are contained in Exhibit 5, all of which attest to the things I have just indicated. [ 20 ] Tyler Stephens resides with his parents, who are his sureties, as part of his bail conditions. However, just a few months before the collision, he had purchased his own home.

Both of his parents and his younger sister have written letters contained in Exhibit 5 which describe their son and brother as a hard-working, responsible, very family-oriented young man who has the support of his extended family. His sister describes him as a devoted uncle who spends considerable time with his niece and nephew. Their letters describe, together with a number of letters from other family friends, how remorseful Tyler is for his actions which took the life of Shannon Smith.

According to these character letters, the conduct that brings Tyler Stephens before the court is out of character for him and has greatly affected him. [ 21 ] In the Pre-Sentence Report, Exhibit 4 at page 11, Mr. Driscoll indicates that Tyler Stephens, “...expresses regret for his actions. The subject states that he pled guilty to the offence in order to provide as much closure as he could to the victim’s family. The subject appeared to be very forthright in discussing this matter as he understands that he is to blame for the situation and he did not want to prolong any suffering for the victim’s family.” Mr.

Stephens told the probation officer that he accepts full responsibility for his actions in causing the collision and places no blame on anyone else. He expressed, during his interview, empathy towards those who witnessed the accident, as well as the relatives of Shannon Smith and to Shannon Smith herself. The report also reflects that Mr. Stephens is aware of and devastated by how his actions have impacted and affected his own family. [ 22 ] Mr. Stephens described to the probation officer that he has a difficult time sleeping and suffers from anxiety and stress due to the matter that is before the court.

He was asked about counselling and he indicated that he was open to becoming involved in counselling. When the tragic consequences of his actions were discussed with the probation officer, Mr. Stephens, according to the probation officer, became emotional and it was the probation officer’s opinion that Mr. Stephens struggles with how his actions have impacted so many people.

[23] The probation officer, Joshua Driscoll, interviewed a significant number of individuals concerning Mr. Stephens’ background. ThePSR is very detailed, informative and positive. The PSR corroborates the character letters in Exhibit 5. Mr. Stephens became involvedwith a charitable organization in the fall of 2012 and utilized his expertise performing mechanical duties and volunteered over 60 hours. When the supervisor of the charity was contacted, he advised that he had only positive comments to make about Tyler Stephens. Analysis Mitigating Circumstances [24] Mr.

Stephens is a relatively youthful first offender. He has overcome difficulties in his life, his addiction to opiates, which in myview is important in assessing the impact of the criminal justice system on this young man’s future conduct and behaviour. He also hasstrong family support, as well as support from his employer in terms of preserving his job after his release from custody. [25] He entered a plea of guilty and I was advised by Mr. Mark that that has always been Mr. Stephens’ instructions. I accept thatsubmission.

He has demonstrated tremendous insight into the tragic consequences of his actions during the evening of August 18, 2012and the impact it has had and will continue to have on the Smith family and friends as well as his own family. From the material that hasbeen provided to me, it is apparent that he is deeply remorseful. His guilty plea reflects that. In my view, his regret is genuine. Hisactions and the tragic consequences that followed, I believe, will haunt Mr. Stephens for the rest of his life. [26] He has also accepted complete responsibility for his actions, which is reflected in the PSR.

His guilty pleas have significantlyshortened the amount of time required to deal with these charges. He recognized that a preliminary hearing and trial would have causedthe Smith family to relive the events and he has done what he can to conclude the criminal proceedings as quickly as possible. He hasalso saved the administration of justice the cost and expense of a preliminary inquiry and trial. [27] Mr. Stephens is a young man of previous good character who is gainfully employed.

He is hard-working and responsibleaccording to everyone who wrote letters and all of those persons contacted by the probation officer. [28] An added element in Mr. Stephens’ case is that he is a youthful first offender. At the time of the commission of this offence, hewas 27 years of age, only recently moved out of his parents’ home. [29] In R. v.

Stein (1974), (ON CA), 15 C.C.C. (2d) 376, a decision of the Ontario Court of Appeal, at page 377,Justice Martin made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodialsentence. “It is the view of the court that the sentence imposed upon the appellant does reflect an error in principle.

In our view, before imposing acustodial sentence upon a first offender, the sentencing court should explore the other dispositions which are open to him and onlyimpose a custodial sentence where the circumstances are such, or the offences of such gravity that no other sentence is appropriate. Inour view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to beimposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence.” [30] In R. v.

Priest (1996), (ON CA), 110 C.C.C. (3d) 289, the Ontario Court of Appeal, Justice Rosenberg made thefollowing comments concerning R. v. Stein, supra at paragraphs 18 and 19: “As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute theminimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges considercommunity-based dispositions first and impose more serious forms of punishment only when necessary.

These principles have now beencodified in the recently proclaimed Sections 718 and 718.2 of the Criminal Code.

Section 718(

c) instructs that separation of offendersfrom society is an appropriate objective of sentencing ‘where necessary’.

Section 718.2(

d) directs that an offender should not bedeprived of liberty ‘if less restrictive sanctions may be appropriate in the circumstances’. The principle embodied in now

Section 718.2(

e) was of particular significance in this case. It provides that ‘all available sanctions otherthan imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to thecircumstances of aboriginal offenders.’”

[31] In my view, under the law dealing with conditional sentences under

Section 742.1 of the Criminal Code, which existed at the timeof the commission of these offences, a conditional sentence is no longer an available sentencing option. Both counsel agree with thisassessment. If these offences had been committed five years ago, however, a conditional sentence, having regard to the precedents set bythe Ontario Court of Appeal, would have been a realistic and probable sentence having regard to Mr. Stephens’ background and thecircumstances surrounding the dangerous driving. However, under the provisions of the Criminal Code in August of 2012, Mr.

Stephensmust be sentenced to a custodial sentence. These offences are of such a gravity that a custodial sentence is the only appropriate option. [32] The determination of a proper sentence in this case calls for consideration and balancing of the principles of sentencing set out inSection 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case.

I have set outabove a number of mitigating factors and aggravating circumstances which I must consider in determining an appropriate sentence. [33] Both counsel agree that the predominant, paramount sentencing principles applicable in a dangerous driving causing death case aredenunciation and deterrence. It is also agreed that the facts of this case require a custodial sentence to properly reflect those twosentencing principles. I can indicate it is my view that specific deterrence, having regard to the fact that Mr. Stephens does not have aprior criminal record, is not of concern in this matter.

However, general deterrence and denunciation are still the primary paramountsentencing principles that I must apply in coming to an appropriate sentence. Sentencing is highly individualized and must beproportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account forany aggravating or mitigating circumstances.

It should strive to be similar in relation to other sentences imposed on similar offenders insimilar circumstances. [34] The jurisprudence indicates a range of sentence for these types of cases, namely dangerous driving causing death, from reformatorysentences (sentences as low as six months) to sentences in the penitentiary (sentences as high as three years). It is clear that any sentencemust focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for bothgeneral and specific deterrence.

At the same time, the sentence must be individualized as well as reflect and encourage as much aspossible any apparent rehabilitative prospects. [35] A sentencing hearing, as a matter of law, searches for a just and fair result, having regard to the legal precedent in the Province ofOntario and the application of sentencing principles to the facts of the specific case at hand. Aggravating Circumstances [36] There are several aggravating features for me to consider in this case. First, I have to consider the tragic consequences of Mr.Stephens’ actions.

On August 18, 2012, Shannon Smith, 16 years of age, was waiting outside a house where she had attended a gatheringwith friends. She was waiting for her mother to come and drive her home. Mr. Stephens’ irresponsible conduct in accelerating his pick-up truck; there is no estimate of how fast he was driving, but it was sufficient to cause the back end of his truck to fish-tail causing him tolose control of the truck, drive over the curb, across the sidewalk and strike Ms. Smith standing on the grass in front of the house. Mr.Stephens’ marked departure in his driving directly caused the death of Ms. Smith.

This was a great tragedy. It has caused indescribablegrief, loss and confusion for those who knew her and loved her and their lives will never be the same. [37] What further aggravates Mr. Stephens’ actions is that he did not immediately stop to try and render assistance to Ms. Smith. Mr.Stephens committed the offence of dangerous driving causing death, which is an extremely serious offence in and of itself, but he thencommitted the further offence of leaving the scene of an accident to try and escape civil or criminal responsibility. Mr.

Stephensadmitted that he should have known that someone had been struck and was likely injured, but he chose to flee the scene. In my view, thisconduct compounds and exacerbates the initial dangerous driving offence and it requires a consecutive sentence to be imposed. The Sentence [38] No two cases are identical on their facts and sentencing is therefore very much linked to the peculiar and specific facts of theindividual case. I was provided extensive casebooks containing numerous cases involving charges of dangerous driving causing deathand fail to stop at the scene of an accident.

In the Crown factum, the Crown provided the cases of R. v. Precup, 2013 ONCA 411, [2013] O.J. No. 2836 (ONCA); R. v. Regier, 2011 ONCA 557 , [2011] O.J. No. 3749 (ONCA); R. v. Goulet, [2009]O.J. No. 4654 (ONCA); R. v. Ryazanov, 2008 ONCA 667 , [2008] O.J. No. 3816 (ONCA); R. v. Boukchev, (ON CA), [2003] O.J. No. 3944 (ONCA); R. v. VanPuyenbroek, 2007 ONCA 824 , [2007] O.J. No. 4689 (ONCA); and finally,R. v. Kippax, [2010] O.J. No. 2021 (ONSC). The defence provided a casebook containing 25 decisions. The most significant ones that Iwill refer to now are: R. v.

Phillips, [2005] CarswellOnt 187 (Ontario Court of Appeal); the Ontario Superior Court of Justice decision isat R. v. Phillips, [2003] CarswellOnt 4439; a decision of the Ontario Court of Justice, Justice Nadel, R. v. Fitt, [2011] CarswellOnt 2826;

R. v. Ross, [2008] CarswellOnt 5742, decision of the Court of Appeal of Ontario; R. v. Lam, [2003] CarswellOnt 4081, Ontario Court ofAppeal decision; R. v. Ford, [2003] CarswellOnt 3280, Ontario Court of Appeal decision; the trial decision of R. v. Ford, [2000]CarswellOnt 5905 (ONSC), Justice Locke; R. v. Middleton, [2012] (ONCA) 523, Ontario Court of Appeal; R. v. Christink, [2010]CarswellOnt 2519 (ONSC), Justice Thompson; R. v. Rodriguez, [2007] CarswellOnt 6926 O.C.J., Justice Gorewich; R. v. Buchanan,[2002] CarswellOnt 2614, a decision of Justice O’Connor in the Superior Court of Ontario; and R. v.

Mansour, [2002] CarswellOnt 1529(ONSC), Justice McIsaac. He also provided the decision of R. v. Luk, [2001] CarswellOnt 670, Ontario Superior Court, Justice Hill; R.v. Shelly, [2002] CarswellOnt 1585 Ontario Superior Court, Justice Henderson; R. v. Areco, [1999] CarswellOnt 3635, a decision of theOntario Court of Justice; R. v. DeJesus, [2000] CarswellOnt 2878, Ontario Superior Court, Justice Glithero. As can be seen just fromthe list of cases that were provided to me, the jurisprudence and the precedents are all over the map.

They range in sentence from 18months to 3 years in jail. [39] The Ontario Court of Appeal in R. v. Lam, which I have referred to, (ON CA), [2003] O.J. No. 4127, in dealingwith a case of criminal negligence causing death, which is a significantly more serious charge as compared to dangerous driving causingdeath as it relates to the case law, provided a chart comparing the types of sentences imposed for these two offences which I believe isvery informative, certainly as of the year 2003. That is

Schedule A of that judgment. The Ontario Court of Appeal declined in R. v. Lamto set a range of three to five years for the offence of criminal negligence cause death as urged by the Crown, citing R. v. Linden (2000), (ON CA), 147 C.C.C. (3d) 299, a decision of the Ontario Court of Appeal. In Lam, Justice Labrosse for the courtquoted from paragraph two of the Linden decision: “If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causingdeath.

The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies therange-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the most infinite variety ofcircumstances in which this offence can be committed. Cases can be found in the reformatory range and there are even examples ofsuspended sentences.” [40] Both the court in Linden and in Lam recognized, as reflected in paragraph 10 in R. v.

Lam: “...that driving offences involving reckless conduct and the consumption of alcohol are generally subject to more severe sentences. Inaddition to the consumption of alcohol or drugs, courts have also treated multiple deaths, racing, reckless driving for a lengthy period oftime, a lengthy criminal record, a bad driving record, flight from the police, and leaving the scene of the accident as aggravatingcircumstances.” [41] Many of the aggravating factors set out by the Court of Appeal in Lam are not present in the facts involving Mr. Stephens’ charges. He was not under the influence of alcohol or drugs.

There were not multiple deaths or serious injuries of multiple individuals involved inthis case. There was no racing or stunt driving or reckless driving that went on over an extended period of time. There is no priorcriminal record for similar or related offences and there is no flight from the police. [42] There is, as I have indicated, a minor HTA driving record. Mr. Stephens left the scene of the accident being aware that he hadstruck someone and did not stop to render assistance.

In my view, this is a serious aggravating circumstance which requires, as I haveindicated, a consecutive sentence. [43] A fact that I believe is significant in trying to assess the severity of the conduct engaged in by Mr. Stephens is that the dangerousdriving occurred as Mr. Stephens exited the plaza and then accelerated his pick-up for a total of 48 metres before striking Ms. Smith. There is no estimate as to the distance he travelled before losing control of his truck, but given the diagram in Exhibit 2, the AccidentReconstruction Report in Appendix A and B, it would appear that Mr.

Stephens lost control after travelling only 10 or 15 metres. Thepassage of the time would have been only seconds. It was described to me by Mr. Mark as a momentary bad decision. I am sure, inhindsight, Mr. Stephens wishes he never accelerated his truck to show off to his friend what his truck was capable of. Unfortunately, hecannot undo his actions or the tragic consequences that followed. He found out what his truck can do. It can kill an innocent young girl. This is something that he will have to live with for the rest of his life. [44] Both Mr. Tait and Mr.

Mark in their submissions indicated that the Smith family’s horrific loss cannot be compensated by this courtor the sentence that I will impose. Most of the decisions provided to me speak of sentences in the upper reformatory; 18 months to 2years less a day. [45] As I have reviewed the cases, sentences in the area that was urged upon me by the Crown of three years seemed to be reserved forcases involving alcohol or drugs, individuals under the influence of alcohol or drugs, which involve reckless driving or stunt driving that

takes place over an extended period of time, lengthy criminal records or lengthy driving records for similar or related offences. None ofthose things exist in this case. In my view, having regard to the mitigating and aggravating circumstances I have outlined above, as well as the many decisions from theOntario Court of Appeal where reformatory sentences have been upheld for cases involving similar factual circumstances, it is mysentence on the charge of dangerous driving that Mr.

Stephens is to be incarcerated for a period of 18 months in the reformatory. [46] In addition, it is my view that on the charge of fail to stop at the scene of an accident, the appropriate sentence is one of 9 months. As I indicated in my reasons, this conduct was particularly aggravating. [47] Mr. Stephens was placed on a very restrictive recognizance of bail which required him to observe a “curfew to be in his residence atall times except in the company of his sureties (his parents).” He was also prohibited from operating a motor vehicle on a highway asdefined in the Highway Traffic Act.

The house arrest condition was varied slightly in October 2012 to allow him to go to and from hiswork and attend only at his workplace and be at his workplace doing his duties. In November, it was further varied to allow him to docommunity service work. Other than those two variations, Mr. Stephens has been under a house arrest condition for the entire 13 monthsfrom the time of his charge until his sentencing today. In R. v.

Downes (2006), (ON CA), 205 C.C.C. (3d) 488, adecision of the Ontario Court of Appeal, Justice Rosenberg held that “time spent under stringent bail conditions, especially under housearrest, must be taken into account as a relevant mitigating circumstance.” (See paragraph 33.) At paragraph 29 and paragraph 36: “Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with thefundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actualincarceration.

Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditionalsentence under

Section 742.1 of the Criminal Code. Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, theamount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must beconsidered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.” [48] The Crown concedes that R. v. Downes has application in this case. In my view, the appropriate credit for the approximately 13months of stringent bail restrictions is 3 months and 1 day. [49] Consequently, the sentence for the fail to stop under

Section 252 of the Criminal Code is six months less a day in jail. Thissentence is consecutive to the 18-month sentence for dangerous driving causing death, making a total sentence of two years less a day. The information will reflect that I have given credit per R. v. Downes for restrictive bail conditions of three months and one day. [50] I will be frank in saying that I have not only been persuaded by the decisions of the Court of Appeal to impose a maximumreformatory sentence, I am also persuaded to impose that sentence because Mr.

Stephens comes before the court without a criminalrecord and he is a youthful man. In those circumstances, sentencing him to the penitentiary as a first sentence of incarceration, in myview, would be inappropriate. In addition, Mr. Stephens is placed on probation for a period of three years and I want you to understand, Mr. Stephens, you are nowunder the control of this court for five years. That would not have been the length of time that you would have been subject to conditionsif it had been a penitentiary sentence.

I would not have been able to impose probation on you with a penitentiary sentence pursuant to theCriminal Code. So the following terms and conditions will be applicable in terms of your probation and counsel, when I’m finishedindicating the terms that I believe are appropriate, if you have other terms that you wish to bring to my attention and have me consider, Iwill entertain submissions. Firstly, you’ll be subject to the following statutory conditions. These are part of every probation order. Youshould stand now Mr. Stephens. Firstly, you’ll keep the peace and be of good behaviour.

This is something I say to everyone that I puton probation. Everyone has to keep the peace and be of good behaviour without a court order. You now have a court order that requiresyou to do that. If you commit any criminal offence while you are on probation, I guarantee you the police will not only charge you withthose new criminal offences, they will charge you with breaching this court order, this probation order and they will hold you in custodyfor a bail hearing and you may not be able to get bail because you have breached a court order. Do you understand that? TYLER STEPHENS: Yes, sir.

THE COURT: Okay, you will appear before the court when required to do so by the court. You will notify the court or your probationofficer in advance of any change of name or address. You will promptly notify the court or probation officer of any change ofemployment or occupation. These are important statutory terms. If you breach any of them, your probation officer can have youcharged by the police with breaching this probation order which is a court order and which I have indicated to you, police will hold you

in custody for a bail hearing. Do you understand that? TYLER STEPHENS: Yes, sir. THE COURT: So your life is now going to be controlled when you are ultimately released from custody. It will be controlled by your probation officer. You will be subject to this probation order. Do you understand that? TYLER STEPHENS: Yes, sir. THE COURT: Okay, you will report forthwith in person to a probation officer and thereafter as required. You will reside at an address approved of by your probation officer.

You will perform a hundred and fifty hours of community service work as directed by your probation officer and provide written proof to the satisfaction of your probation officer of completion of those community service hours. The work is to be commenced within 60 days of your release from custody and to be completed at a rate determined by your probation officer. I think that there is value in ordering you to perform community service. It is not, in any way, going to repay for the loss that has occurred to the Smith family, but it will bring home, hopefully to you, the importance of community service.

You have engaged in that. You have used your skills prior to being sentenced by me on these charges. That should form part of your life from this point on. Community service is something to engage in on a regular basis. Hopefully this being part of your probation order will instill that in you. You are not to operate a motor vehicle on a street, road, highway or other public place while this probation order is in place.

You will attend for such assessment and counselling for substance abuse or any other reason that your probation officer may direct and not stop that counselling without the prior written permission of the probation officer. You will execute a release of medical, psychiatric or other confidential information to your doctor or counsellor in favour of the probation officer so they can discuss your progress. You indicated to Mr. Driscoll that you were open to counselling.

I can assure you, given what has taken place and given the actions that have brought you before the court and the tragic consequences that resulted from those actions, you will need counselling. Not just for substance abuse, but how to deal with the horror of what you have done, all right? I think that is very important for you Tyler, in order for you to be able to continue and live a productive life, something that Shannon Smith is never going to be able to do. Any other terms Mr. Tait? MR. TAIT: I was thinking, Your Honour, of no contact with the family of Shannon Smith except through legal counsel.

I’m sure it won’t be an issue, but I ask you to consider THE COURT: I am certainly... MR. TAIT: ...that. THE COURT: ...prepared to make that a term. I can’t imagine that that would happen, but... MR. TAIT: Just sometimes – they’re in the same general community sometimes... THE COURT: I understand. MR. TAIT: ...of course, the parties are quite a distance apart. THE COURT: I will make a term that you are not to associate or communicate directly or indirectly with any member of the Smith family except through legal counsel or except through court proceedings. In addition Mr.

Stephens, I was asked and it was agreed on by your counsel to impose a driving prohibition and I am going to impose a five year driving prohibition which prohibits you from driving anywhere in Canada during that period of time. While you’re in custody, you obviously won’t be operating a motor vehicle. When you are on probation, one of the terms is that you’re not to operate a motor vehicle. That will likely end very close to the end of the five year driving prohibition, okay? So, do not drive. I can tell you that is another circumstance, and Mr.

Mark can explain it more fully, but driving while prohibited, you will end up, again, in custody. TYLER STEPHENS: Yes, sir. THE COURT: Okay, any questions about the terms of the probation order that I have indicated? TYLER STEPHENS: No, sir. THE COURT: Okay, you agree to abide by those terms? TYLER STEPHENS: I do. THE COURT: Okay, a final thing that I will indicate for the record, and it can be reflected on the warrant of committal, based on Mr. Stephens’ background, I know that the correctional facilities have temporary absence programs.

That will be something that you can certainly apply for and given your background, you may very well be a candidate for. I’m putting that on the warrant of committal. Anything further? MR. TAIT: And it’s part of the global sentence, Your Honour? THE COURT: That is a global – global sentence... MR. TAIT: Yes. THE COURT: ...is two years less a day. MR. TAIT: Right. There were other terms suggested; the forfeiture and the DNA order?

THE COURT: I will make a DNA order. I think that – I don’t know if it’s mandatory under dangerous driving causing death, but... MR. TAIT: Actually, it isn’t, remarkably, but under the fail... THE COURT: I can’t... MR. TAIT: ...to remain... THE COURT: ...believe that it... MR. TAIT: ...count... THE COURT: ...isn’t. Given the nature of the offence, in my view, it’s an appropriate order to make. So while you’re in custody, they will take a sample of your blood or bodily substance that will then be put into the DNA databank pursuant to provisions of the Criminal Code . That will be done. Mr.

Mark, what’s your position with respect to the forfeiture of the pick-up truck? MR. MARK: We were originally going to argue against it, but I find it rather difficult to argue in terms of disproportionality when we have an indictable offence. We have a death... THE COURT: yes. MR. MARK: ...and we have a case emanating out of the Quebec Court of Appeal for really a simple impaired driving and a vehicle being impounded, seized and forfeited. THE COURT: I think in terms of the circumstances of this case, it would be inappropriate for me not to make a forfeiture order.

I think that is another consequence to Tyler for his actions. It is a small token, but it is a consequence and to think that he would be able to drive the vehicle that killed Shannon Smith in the future, I think is, to me, horrific. MR. MARK: No, as I indicated, I – I had originally thought, and we discussed, the – the potential for making... THE COURT: Yes. MR. MARK: ...an argument, but there wasn’t any reasonable argument to be made. THE COURT: All right, you have a forfeiture order for me to sign then? MR. TAIT: I’ll get the particulars, Your Honour. THE COURT: You get the particulars... MR. TAIT: Yes.

THE COURT: ...and have... MR. TAIT: Having now made... THE COURT: It can be... MR. TAIT: ...the order, I’ll.... THE COURT: ...made available to me. I will sign that order. You will not have that truck... MR. TAIT: All right, thank Your Honour. THE COURT: ...upon your release from custody. You can’t drive for the next five years in any event, so... MR. MARK: Just... THE COURT: ...I think that’s an appropriate order to make. MR. MARK: The driving prohibition order, Your Honour, starts today? THE COURT: Starts today. MR. MARK: Yes, thank you. COURTROOM CLERK: So it is a primary DNA order then?

THE COURT: I don’t think... MR. TAIT: Actually, it’s... MR. MARK: I don’t know... THE COURT: ...it is.

MR. TAIT: ...secondary. MR. MARK: ...secondary. THE COURT: I think it’s secondary. MR. MARK: Fail to remain is a secondary. THE COURT: Is dangerous driving cause death primary? MR. TAIT: No. MR. MARK: No. THE COURT: I don’t think it is either. MR. MARK: No. THE COURT: And I find that... MR. MARK: It doesn’t appear... THE COURT: ...surprising given some of the other charges that are primary. MR. MARK: It doesn’t appear at all. THE COURT: I’m sorry? MR. MARK: It doesn’t appear at all. THE COURT: Well, I’m making the order, so. MR. MARK: Yes. THE COURT: But it is a secondary.

Madam Clerk, here are all of the exhibits in this matter. They will be filed. There are eight in total as well as the two casebooks. MR. MARK: Thank you Your Honour. MR. TAIT: Thank you Your Honour, for your consideration of the matter. There are remaining complicitous counts. Those are withdrawn of course. THE COURT: All right, the other charges are withdrawn at the request of the Crown. Good luck to you Tyler. TYLER STEPHENS: Thank you, sir. COURTROOM CLERK: Just go with the officer, thank you. * * * * * * * * * *