HER MAJESTY THE QUEEN - v. -, 2003 ABQB 285

R. v. Williams, 2003 ABQB 285 Date: 20030328 Action No. 017225020Q1 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: HER MAJESTY THE QUEEN - and - JONATHAN STEWART WILLIAMS Convicted _______________________________________________________ SENTENCING REASONS of the HONOURABLE MADAM JUSTICE S. J. GRECKOL _______________________________________________________ APPEARANCES: Mr. C. Purvis for the Crown Mr. J. Joose for the Accused

I. BACKGROUND FACTS [ 1 ] Mr. Williams has been found criminally responsible for the death of Cynthia Martin and for leaving the scene of an accident. The evidence showed that on Tuesday September 4, 2001, at about 8:15 a.m., Ms.Martin was riding her motorcycle to Centre High in Edmonton for the first day of school. She was travelling north on 142 nd Street approaching the Valleyview Drive intersection. [ 2 ] Mr Williams, driving a City truck and towing an equipment trailer, brought the rig to a stop at the stop sign at Valleyview Drive and 142 nd Street. Traffic was busy as it was the first day of school.

There is a pedestrian stop light at that corner which was green, indicating that traffic traveling north and south had the right of way. Mr. Williams looked to his left and saw an ETS bus approaching. He looked right. The traffic in the inside lane going south was stopped, as the first driver in line was turning left onto Valleyview Drive. Mr. Williams thought the traffic was busy and there would not be many opportunities to proceed. As he was turning left, he looked right. [ 3 ] Mr.

Williams saw the bus approaching, but would not have been able to see what traffic was proceeding north in the inside lane on the other side of the bus, because the bus obscured his view. Mr. Williams thought about his actions and, despite the length of his rig, and the oncoming traffic which had the right of way, he took a risk that he could get through the intersection prior to the bus entering it. He took a further risk that the inside lane beside the bus would be clear, and that he could get through the intersection prior to any of that unseen traffic entering the intersection.

He entered the intersection assuming the immediate risk of collision with the bus. The bus driver saw him and honked at Mr. Williams to warn him that the bus had a green light and he should not enter the intersection. Mr. Williams did not stop. The bus driver slammed on the brakes, and managed to stop the bus in time to avoid colliding with the truck. The bus came to rest with its front tires just over the crosswalk, with the front tire and door area of the bus in the intersection. [ 4 ] Ms.

Martin was traveling in the inside lane beside the bus, and her vision was obscured by the bus so she did not see the truck until it pulled into her path. She applied her rear brakes, causing the motorcycle to skid and fishtail, panicked, and released the brakes. She attempted to avoid the collision but collided into the trailer, and was thrown to the ground where she suffered fatal injuries. Had she applied the full force of both her front and back brakes, she would have stopped south of point where the collision took place. Ms.

Martin was transferred to the University Hospital where she died undergoing emergency surgery for the injuries she sustained in the collision. [ 5 ] Mr. Williams continued to make the turn into the southerly, inside lane of 142 nd Street. He did not stop the truck until he was forced to do so by the actions of another motorist who saw the collision, gave chase, and interposed his vehicle in front of the truck at the traffic circle at 87 th Avenue and 142 nd Street. Mr. Williams ’ words and actions on being stopped raised questions about his state of mind. [ 6 ] Evidence at trial showed that Mr.

Williams had spent the long weekend before the collision at a music festival at Ness Creek, Saskatchewan with a group of friends. He had consumed marijuana and LSD on the weekend, and his ingestion of these drugs induced a psychotic episode on Sunday and through Monday. [ 7 ] On the basis of the toxicological evidence, I concluded that the Crown had not proved beyond a reasonable doubt that Mr. Williams’ ability to drive a motor vehicle was impaired by alcohol or a drug. Further, the evidence of the witnesses did not show that Mr. Williams was impaired on Tuesday morning.

He had interactions with people at his workplace, and with his co-workers and none testified as to signs of impairment. Both of the co-workers who were in the same truck as Mr. Williams observed him to be normal during the time periods before and leading up to the time of the collision.

[ 8 ] However, Mr. Williams ’ pattern of driving after he left the City yard on Tuesday morning was abnormal, marked by a near collision, speeding in a back alley, following too close to another vehicle, and proceeding out of turn through a four way stop. Mr. Williams then drove by his own admission, into the intersection at Valleyview Drive and 142 nd Street when it was unsafe to do so, causing the collision which resulted in the death of Cynthia Martin. [ 9 ] I concluded that Mr.

Williams ’ pattern of abnormal driving prior to the collision, and his actions at the intersection at the time of the collision, constituted a marked departure from that of the reasonable driver in the circumstances. I was satisfied that the Crown had proved beyond a reasonable doubt that he had committed the offence of dangerous driving and that the dangerous driving was a substantial cause of the collision that resulted in the death of Ms. Martin. Consequently, I convicted Mr. Williams of the offence of dangerous driving causing death. [ 10 ] Further, I was satisfied that Mr.

Williams was aware that a collision had occurred at the intersection, although the evidence did not show that he realized the tragic consequences of his actions. I found that his break with reality, or the psychotic episode which he suffered, occurred after the collision, when he was confronted by Mr. Boros, and was likely precipitated by the shock of the collision against the backdrop of drug ingestion over the weekend. I found that the evidence did not show that Mr. Williams knew the tragic consequences of his actions, but that he was aware that a collision had occurred at the time.

Commencing with the conversation with Mr. Boros, and clearly by the time he was in police custody heading to the police station, the delusional state had set in. The Crown proved beyond a reasonable doubt that Mr. Williams was involved in an accident but failed to stop his vehicle, to provide particulars, or to offer assistance, with the intent to evade civil or criminal liability. Consequently, Mr. Williams was convicted of the offence of leaving the scene of an accident. II. THE CHARGES [ 11 ] Specifically, Mr.

Williams was convicted of dangerous driving causing death contrary to s. 249(4) of the Criminal Code and, with intent to escape civil or criminal liability, of failing to stop his vehicle, give his name and address, and offer assistance to any person injured, contrary to s. 252(1) (b). III. PRINCIPLES OF SENTENCING [ 12 ] The important principles of sentencing are codified in s. 718 of the Criminal Code .

The fundamental purpose of the sentencing process is to contribute to respect for the law and to the maintenance of a just, peaceful, and safe society by imposing just sanctions that promote objectives conducive to that goal.

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ] Of the objectives listed in s. 718 , those to be considered in imposing a sanction in this case include denunciation, specific and general deterrence, separation of the offender from society, rehabilitation, reparation for the harm caused to the victim and the community, promotion of a sense of responsibility, and an acknowledgement of harm done to the victim and the community. [ 14 ]

Section 718.2 (

e) of the Criminal Code requires that the court which imposes sentence also take into consideration all available sanctions, other than imprisonment, that are reasonable in the circumstances. The defence in this case contends that this is an appropriate case for a conditional sentence, that is, a sentence to be served in the community. [ 15 ] In R. v. Proulx , 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 at para. 15 the Supreme Court of Canada re-affirmed its previous decision in R. v. Gladue , 1999 CanLII 679 (SCC) , [1999] 1 S.C.R. 688 that the new

Part XXIII of the Criminal Code , the sentencing provisions, were the first significant reform of sentencing principles in the history of Canadian criminal law. The Court observed that Parliament ’ s principal objectives in enacting this new law was to reduce the use of prison as a sanction and expand the use of restorative justice principles in sentencing. The Court noted at para. 20 that by placing new emphasis on restorative principles, Parliament expected both to reduce the rate of incarceration and improve the effectiveness of sentencing. The Court described restorative justice as follows at

para. 18: Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crime generally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved.

This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community. [ 16 ] The Court stated at para. 22 that because the sentence is served in the community it will generally be more effective than incarceration at achieving the sentencing goals of rehabilitation, reparation to the victims and community, and promotion of a sense of responsibility in the offender. [ 17 ] The Court made a point of noting that a conditional sentence, which is in fact a conditional sentence of imprisonment which is served in the community, is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

At para. 102, the Court states that denunciation is the communication of society ’ s condemnation of the offender ’ s conduct. This can be accomplished by imposing a sentence other than a jail sentence and by imposing onerous conditions.

Further, a conditional sentence includes an element of stigma of living in one ’ s community under the censure of a strict court sentence, while others are aware of the criminal misconduct, and this can provide, in the words of the court at para. 105, ample denunciation in many cases. [ 18 ] As to deterrence, the Court stated at para. 107 that deterrence may be achieved by sufficiently punitive conditions imposed in the eye of the public; and through use of community service orders, including those in which the offender may be obliged to speak to members of the public about the evils of the particular criminal conduct in which he has engaged, assuming that he is amenable to that condition. [ 19 ] The Court recommended, at para. 113, a non-exhaustive list of criteria for determining whether restorative objectives can be met: the sentencing judge should consider the offender ’ s prospect for rehabilitation, including whether he has a particular plan for rehabilitation; the availability of appropriate community service and treatment facilities; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as victim ’ s wishes as revealed by the victim ’ s impact statements. [ 20 ] The Court concluded that where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. [ 21 ] The Court in Proulx also considered the four criteria set out in s. 742.1 of the Criminal Code , being the factors that must be assessed before deciding to impose a conditional sentence: that the offence must be one not punishable by a minimum term of imprisonment; that the court must impose a term of imprisonment less than two years; that the safety of the community would not be endangered by the sentence being served in the community; and that the sentence would be consistent with the fundamental purpose and principles of sentencing in the Criminal Code . [ 22 ] The facts in Proulx bear consideration.

After a night of partying involving the consumption of alcohol, the accused drove his friends home though his car was in a state of disrepair. For between ten and twenty minutes, he drove erratically, weaving in and out of traffic, tailgating, and trying to pass, despite steady oncoming traffic and slippery roads. As he was trying to pass another car, he drove into a lane of traffic, side-swiping one car, and crashing into the second. The driver of the second car was seriously injured; a passenger in the accused ’ s car died, and the accused was in a coma for some time, although he recovered.

The accused entered pleas of guilty to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. [ 23 ] The trial judge imposed a sentence of 18 months concurrent on each charge with a driving prohibition for five years. She considered that the driver was only eighteen; that the amount of alcohol was one and a half to two beer; that he was employed and expecting a first child, that he had no prior record, and that he had been seriously injured in the accident. The Court of Appeal substituted a conditional custodial sentence for the jail term.

The Supreme Court of Canada reinstated the decision of the trial judge because appellate courts should not second guess sentencing courts unless the sentence is demonstrably unfit. The Supreme Court noted that this is so, in part, because trial judges are closer to the community and know better what would be acceptable to their community. [ 24 ] Chief Justice Lamer concluded, at para. 130, by confirming that a conditional sentence is available in this type of case, and

he might have found one appropriate himself, for the following reasons: the accused “ is still very young; he had no prior record and no conviction since the accident; he seems completely rehabilitated; he wants to go back to school; he has already suffered a lot by causing the death of his friend, and was himself in a coma for some time. ” Further, he says at para. 130 that he “ might have imposed conditions such as house arrest and a community service order requiring the accused to speak to designated groups about the consequences of dangerous driving ... ” IV. SUBMISSIONS AT THE HEARING RESPECTING SENTENCE A.

Impact on the Victims [ 25 ] I have before me the victim impact statements of the parents of Cynthia, Mr. and Mrs. Martin, and of the extended family. Cynthia was a well loved young woman with devoted parents, extended family and friends. She was in the prime of her life, full of promise, and looking forward to all that life can offer. Her mother has eloquently written of the life that she shared with her teenage daughter, and of the loss that she feels, almost incapable of capturing in words.

Cynthia ’ s father, too, has been profoundly affected by this loss, and speaks movingly of their lives together, and of the fact that nothing prepares one for the death of a child, compounded where, as here, she was an only child. [ 26 ] I have before me also a statement prepared on behalf of her grandparents, aunts, uncles, and cousins. Cynthia had the support and love of a large and close extended family. She is described as a young women with a love of life and for everyone in it. She was an important part of many peoples ’ lives and is deeply missed by all of them.

This letter shows an element of wonder at the senselessness of this tragedy, and shows why coming to terms with her death in these circumstances is so difficult. [ 27 ] I would like to thank those who undertook the difficult task of expressing the impact which this tragedy has had on their lives. I realize that words cannot express such loss, but I found your statements eloquent and moving. B.

Submissions of the Crown [ 28 ] The Crown seeks a global sentence of four and one half years comprised of three and one half years for dangerous driving causing death and one year consecutive for leaving the scene of an accident with intent to avoid criminal or civil liability. [ 29 ] The Crown relies on R. v. Fox (2001), 2001 ABCA 64 (CanLII) , 277 A.R. 298 (C.A.) , in which the accused was convicted on two counts of dangerous driving causing death, one count of dangerous driving causing bodily harm, and one count of leaving the scene with intent to escape civil or criminal liability.

The accused was sentenced to two years and three years respectively, to be served concurrently. Relying on the absence of the usual aggravating factors such as excessive speed and alcohol or drugs, the accused argued for a conditional sentence on appeal. The Court of Appeal reduced the sentence to two years on the dangerous driving charges to be followed by six months for leaving the scene with intent to escape civil or criminal liability.

The Court noted in that case that there was no rational explanation for what had happened. [ 30 ] I note two features that make the facts in Fox significantly more serious than those in this case. First, in Fox , there were two people who died and one who was seriously injured. Second, there appears to have been no doubt that the accused was aware of the carnage he had caused when he left the scene of the accident. [ 31 ] The Crown also cites R. v.

Larson , (1999), 1999 ABCA 352 (CanLII) , 250 A.R. 147 (C.A.) , where the accused, while slightly impaired and speeding, struck and killed two children and seriously injured their mother and younger sister as they walked hand- in-hand in a well marked crosswalk. He was sentenced on two counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm and received two and one-half years in prison.

The Crown in argument in Larson recognized that guilty pleas for this type of dangerous driving offence generally attracted a sentence in the range of 18 to 30 months, but maintained that the sentence range was too low to adequately reflect the public interest. The Court of Appeal did not agree that the sentence was demonstrably unfit, and indicated it was not prepared to offer further guidelines by raising the bar for the length of sentence in respect of

offences involving dangerous driving causing death or bodily harm. [ 32 ] As in Fox , in Larson , the facts were significantly more serious than in this case, in that there were two deaths and two further serious injuries. The case did identify the sentencing range of 18 to 30 months, though it was a case decided before the Proulx decision. [ 33 ] In R. v. Powis , (1996), 1996 ABCA 313 (CanLII) , 187 A.R. 304 , the Court of Appeal settled on fifteen months as an appropriate sentence for dangerous driving causing death following the death of two persons and the serious injury of two others.

The Court endorsed the following comment made in R. v. Stewart (1993), 1993 ABCA 252 (CanLII) , 48 M.V.R. (2d) 49 at para. 7 (C.A.) as to the matters to be taken into consideration in sentencing in such situations: “ ... the blameworthiness and the degree of disregard for the safety and lives of others must be considered, together with the consequences of injury, or death, or both and, of course, the significantly more severe maximum penalties assigned to them. ” Powis , again, involved multiple deaths and injuries and was decided before Proulx . [ 34 ] In R. v.

Baddeley (1991), 113 A.R. 253 (C.A.) the Crown appealed from a sentence of thirty months following the accused ’ s convictions on two counts of dangerous driving causing death, three counts of dangerous driving causing bodily harm, and driving while blood alcohol was over .08 The accused after drinking at least four and a half beers in less than two hours, was speeding at 80 kilometres per hour in a sixty kilometre zone. The roads were wet and he was making rapid lane changes. His passengers warned him about his driving.

The accused lost control, crossed the dividing line, and hit two on-coming cars, killing two persons and injuring three others. He was twenty years old, with no previous record, and self-employed. The trial judge characterized the case as being of mid-range in terms of seriousness on the spectrum of comparable cases. The Court of Appeal did not accept the Crown ’ s argument that a thirty month global sentence was inadequate. The Court decided that the trial judge had been alive to all relevant factors and that the sentences were not unfit.

Again, the situation was very serious, involving the death of two persons, and the bodily harm or injury of three more, driving with a blood alcohol level over .08, and speeding. [ 35 ] The Crown also relies on the Court of Appeal ’ s decision in R. v. Engelhardt (1999), 1999 ABCA 4 (CanLII) , 228 A.R. 337 , where the Court substituted a sentence of eighteen months in custody for a sentence of two year less a day to be served in the community.

The Court wrote that, where general deterrence and denunciation are the dominant factors, a conditional sentence generally is not appropriate, absent exceptional circumstances; and that in cases of dangerous driving causing death where significant alcohol is involved, sentencing ordinarily involves a term of imprisonment.

In my view, this decision, which pre-dates Proulx , must be read in light of the principles in Proulx , itself a case of dangerous driving causing death, where Lamer C.J.C., at para. 22, wrote that a conditional sentence “ ... is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. ” [ 36 ] While I have not summarized all of the decisions provided by the Crown, the theme of the cases is evident from those reviewed. In my view, the cases are helpful to provide insight as to the spectrum of facts and the sentences that such facts have attracted.

However, many of the cases involve significantly more egregious fact scenarios and pre-date the decision of the Supreme Court of Canada in Proulx . [ 37 ] The recent case of R. v. Sand , 2002 ABCA 263 , [2002] A.J. No. 1359 , online: QL (AJ) from the Court of Appeal sums up the current state of the law in this area. In Sand , the accused was driving in heavy fog and was observed, prior to the collision, trying to pass vehicles in his lane and swerving to avoid a head-on collision. After this event, he continued to stray over the centre-line in further attempts to pass.

On one such attempt, despite the evasive actions of the on-coming driver, the accused collided head-on with the other vehicle. Two young passengers in that car were killed, and their brother, the driver, was seriously injured. [ 38 ] The accused had been travelling at the posted speed of 100 kilometres per hour prior to impact and at 71 kilometres per hour at the time of impact. He entered pleas of guilty at the first opportunity, was deeply remorseful, and there was no evidence of impairment. A psychologist ’ s report characterized the offence as a tragic error in judgment as to speed and distance.

The accused had a previous impaired driving conviction and was on release for driving over .08 at the time of this offence. He subsequently was convicted on that charge as well. [ 39 ] The accused ’ s character references spoke highly of him and he had a good work record, while the victim impact statements showed the deep grief of the family. The trial judge sentenced the accused to a conditional sentence of two years less a day on the two counts of dangerous driving causing death and the one count of dangerous driving causing bodily harm.

[ 40 ] On appeal, the Crown sought a sentence of three to six years incarceration and a driving prohibition of ten years. The Court of Appeal dismissed the appeal. It found that the trial judge had not erred in finding that the range of sentence for the circumstances of this offence was 15 to 30 months and that the trial judge was alive to the dangerous nature of the driving pattern.

The court concluded that the sentence imposed was not demonstrably unfit, stating at para. 11: The availability of a conditional sentence for the offence of dangerous driving causing death, where such a sentence can achieve the objectives of denunciation and deterrence, was confirmed by the Supreme Court in R. v. Proulx , 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 . The Court upheld a term of imprisonment and noted that the offences were very serious, resulting in death and serious bodily harm. However, Lamer C.J. stated that in the circumstances of that case he might have found a conditional sentence appropriate.

But given the lack of any reversible error in principle or of a failure to consider any relevant factor by the sentencing judge, he concluded that the Court of Appeal should not have interfered with the sentencing judge's decision. [ 41 ] Sand is a case closer to the facts that I have before me, although as indicated, the dangerous driving of the accused resulted in two deaths and the third sibling being seriously injured; and the accused had two previous convictions for alcohol and driving offences.

A conditional sentence was given after a guilty plea. [ 42 ] On the subject of leaving the scene of an accident, the Crown provided the decision of the Alberta Court of Appeal in R. v. Hindes (2000), 2000 ABCA 197 (CanLII) , 261 A.R. 108 . This case, like many others, is one showing tragic circumstances of both the offender and the victim. Here, the offender was a thirty-five year old mother of two small children, who had suffered both agoraphobia and depression for some fifteen years.

On the occasion of the offence, she had been at Boston Pizza with a friend, where she consumed beer although she was on prescription drugs for her depression. She entered an intersection against a red light and struck another vehicle, causing injury to the passengers. One suffered injuries that lasted for three months; the other suffered a head injury leading to a devastating permanent cognitive disability and a behavioural disorder.

She then drove her car for about ten kilometres, though it was practically inoperable with air bags released, undercarriage leaking, wheels misaligned, and the horn engaged. [ 43 ] The accused was convicted of dangerous driving causing bodily harm and leaving the scene of an accident. The sentencing judge imposed a sentence of 15 months for the former, and one year consecutive for the latter.

The accused appealed, and argued that for leaving the scene there must be a distinction drawn between cases involving a calculated attempt to avoid criminal or civil liability and those where the reaction and leaving the scene is one purely of panic. The Court agreed that each case must be analysed on its own facts, and that not every case requires a one year consecutive sentence for a leaving the scene conviction.

The Court stated at para. 17: In our view, there is a continuum in hit and run cases where, at one end, the accused does everything in his or her power, through deception, calculation or whatever means, to avoid liability. On the other end of the scale are those cases where the accused reacted out of panic or an error in judgement. The sentence should be adjusted for the degree of culpability. [ 44 ] The Court viewed the facts on leaving the scene as consistent with panic reaction, rather than prolonged avoidance of responsibility.

The court of appeal sentenced anew, imposing a period of six months imprisonment for the offence of leaving the scene of the accident, followed by a sentence of 12 months to be served in the community for the offence of dangerous driving causing bodily harm. C. Submissions of the Defence [ 45 ] Counsel for Mr. Williams argued for a conditional sentence, relying on the principles in the Proulx decision, and on the Sand decision from our Court of Appeal. [ 46 ] Reliance was also placed on R. v. B.E.T. (1999), 1999 ABCA 51 (CanLII) , 228 A.R. 388 , another decision of the Alberta Court of Appeal.

There, the Crown appealed a conditional sentence of two years less a day coupled with a seven-year driving prohibition on two counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm. The Crown had sought high provincial time or low federal time before the trial court. The accused himself had a tragic background and was of aboriginal descent.

The sentencing judge found that he had “ made unusual efforts to deal with his past and accept responsibility for the offence. ” The Court of Appeal decided that the trial judge had crafted a conditional sentence that satisfied the principles of sentencing.

[ 47 ] The Court in B.E.T. also confirmed its reasons in R. v. D.J.G. (1999), 1999 ABCA 34 (CanLII) , 232 A.R. 128 that: 1. The conditional sentencing regime is applicable to all crimes not specifically excluded by Parliament. That is not to say that it is applicable to all factual circumstances. 2. Whether or not deterrence and denunciation are the primary considerations in a given case is largely a question of fact. The formal charge cannot, of itself, be determinative of that question.

The facts found by the sentencing judge will be central to the determination of whether deterrence and denunciation are paramount considerations. The Court of Appeal should not interfere with that determination unless there is ground to do so on the authority of R. v. McDonnell (1997), 1997 CanLII 389 (SCC) , 114 C.C.C. (3d) 436 (S.C.C.) , R. v. Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227 and M.(C.A.) (1996), 1996 CanLII 230 (SCC) , 105 C.C.C. (3d) 327 (S.C.C.) . 3. The decision to impose or not to impose a conditional sentence is both fact-driven and discretionary. 4.

Trial judges with a full appreciation of the factual underpinnings and the applicable principles of sentencing are entitled to consider the full range of sentencing alternatives in the judicial arsenal when determining a fit sentence for a particular crime and a particular accused. [ 48 ] Defence counsel also relied on R. v. Iftody , 2003 ABPC 22 , [2003] A.J. 100 , online: QL (AJ), a recent decision of Maher, A.C.J.P.C. This case concerned a young female teacher who became emotionally distraught at a family wedding at Vegreville, Alberta.

Having consumed six drinks during the evening, she got into her car and drove a considerable distance home towards St. Albert, travelling on the wrong side of a double lane, divided highway. She was involved in a head-on collision and the other motorist, also a young woman, died. In a thoughtful and comprehensive judgement, the learned trial judge imposed a conditional sentence on Ms. Iftody, bearing in mind her extreme remorse, her gifts as a teacher and her contributions to the community, her guilty plea, her family background, and her prospects for making reparations to the community.

I find the Iftody decision includes a thorough consideration of the principles that are at play in these cases. The facts are comparable to the case before this Court, but if anything, involve more extreme facts because of the evidence of drinking prior to driving, although no conviction was entered on that basis, and because of the lengthy period of time that she drove down the highway on the wrong side. There was, however, no charge of leaving the scene.

I note that the Crown has not appealed this decision. [ 49 ] The defence also relies on the recent decision of the Alberta Court of Appeal in Sand , where a conditional sentence for two counts of dangerous driving causing death and one of dangerous driving causing bodily harm was not disturbed. The defence relies, too, on R. v. Lokanc [1996] A.J. No. 1191 , a decision of former Chief Justice Moore, in 1996 and therefor before Proulx , in which a conditional sentence of 12 months was imposed for dangerous driving causing death, including 200 hours of community service, and one year probation.

There, the accused was involved in a collision where a passenger in the other car was killed. The accused had been speeding, talking with his passenger, and had proceeded through a red light. He had no criminal record, was remorseful, and entered a plea of guilty. [ 50 ] The defence also provided cases showing that conditional sentences for dangerous driving causing death have been imposed or not disturbed, by courts of appeal in British Columbia ( R. v. Holding 2000 BCCA 425 (CanLII) , [2000] B.C.J. No. 1459 ); Nova Scotia ( R. v. Parker 1997 CanLII 14391 (NS CA) , 116 C.C.C. (3 rd ) 236 ); Ontario ( R. v.

Hollinsky 1995 CanLII 8929 (ON CA) , 103 C.C.C. (3d) 472 ); and by sundry other courts in other Canadian jurisdictions. V. AGGRAVATING AND MITIGATING FACTORS A. Aggravating Factors [ 51 ] The consequences of this offence, the death of a young woman in the prime of her life, is the primary aggravating factor. The Crown urges that I consider the ingestion of drugs the previous weekend as an aggravating factor, for the cases show that where

voluntary ingestion of intoxicants is a material fact in the offence, the penalties are commensurately higher. I have found that neither the toxicological nor the witness evidence disclosed impairment. In these circumstances, I am not prepared to find that intoxicants were a feature of this offence. I did find that the excesses of the weekend likely were at play in causing the inattentiveness in Mr. William ’ s driving, notably fatigue, but this is not the same thing as finding intoxicants were a precipitating factor. [ 52 ] Of course, the nature of the offence of leaving the scene is itself aggravating.

However, I have found that the evidence does not show that Mr. Williams knew precisely what occurred or the tragic consequences of the collision. Due to the unique circumstances, this was true also for his passengers and some of the eye witness observers. B. Mitigating Factors [ 53 ] It is a mitigating factor that Mr. Williams was just twenty six at the time of these offences, and had no prior criminal convictions. As well, as noted by Chief Justice Lamer in Proulx , commenting on the behaviour of the accused since the offence, here too, I note that Mr.

Williams has abided by all his terms of release including abstinence from drugs and alcohol, submission to periodic testing, and supervision. Further, as in Proulx , Mr. Williams is pursuing his education as an apprentice carpenter, preparing himself for a productive life. [ 54 ] It is a mitigating factor that Mr. Williams had formerly been a person of good character.

He is an extremely intelligent young man who has achieved a University degree, has excelled at sports, in particular basketball which he played at a very high level, has coached sports, and has done volunteer work in the community. [ 55 ] It is a mitigating factor that Mr. Williams has a close and very supportive partner and family. Mr. Williams ’ parents are so supportive that they are prepared to have him reside with them.

Further, it is mitigating factor that he has returned to his church community, and is supported and welcomed back to his church community by a large number of people, many of whom who have known Mr. Williams since childhood, who are fully apprised of his conduct and who offer to stand behind him during this difficult period of his life. Some thirty three letters of support have been filed with the Court from people in all walks of life. Although we live in a large urban environment, Mr. Williams is fortunate to find himself in a true community of people bonded by social and spiritual ties.

I will say here, that when considering these letters and the victim impact statements relating to Ms. Martin, I do not simply perform a tally – the letters from all concerned with this tragedy are truly compelling and, as regards mitigation, the support of those in Mr. Williams ’ church community is relevant. [ 56 ] It is a mitigating factor, and I accept, that Mr. Williams is genuinely remorseful for what he has done. He expressed this while at Alberta Hospital, while testifying, through his counsel in these proceedings, and yesterday at his sentence hearing.

I am satisfied from all that I have heard in these proceedings that he is a person of conscience and genuinely remorseful that his conduct has resulted in the death of another human being. I am satisfied that he will carry the weight of this for many, many years, if not always. VI. APPLICATION OF THE SENTENCING PRINCIPLES [ 57 ] I proceed then to consider the factors concerning conditional sentences set out in Proulx . I do so in the context of the principles of sentencing found in ss. 718 and 718.2 (

e) of the Criminal Code . A. General Application of the Proulx Principles: Step 1 [ 58 ] The statutory precondition, that these offences are offences for which there is no statutory minimum, is met. These offences are not punishable by a minimum term of imprisonment.

Step 2 [ 59 ] Next, it is necessary to exclude probationary measures on the one hand and a penitentiary term on the other as appropriate sentences. For this purpose, the principles of sentencing outlined in the Criminal Code are to be used. Because of the seriousness of these offences, it is obvious that probation alone is not appropriate here. On the other hand, because of the decisions considered above, it is my view that the appropriate sentences taken together fall within the range of sentences which may be served in a provincial institution.

Proulx requires, when the sentencing range includes a period of under two years, that a conditional sentence be “ seriously considered ” . [ 60 ] In Larsen , the Court of Appeal noted the Crown ’ s observation that the range of sentences for dangerous driving causing death is eighteen to thirty months. It is apparent to me from considering the facts in this case and the other decided cases, that these facts bring this particular case to the lower end of the range.

That is my view because the egregious factors found in some of these cases, such as impaired driving, multiple deaths and injuries, previous criminal records, driving distances in the lane of on-coming traffic, are simply not here. The facts here involve a tragic miscalculation as to time and distance of oncoming traffic, and a failure to be cognizant of the unknown. The facts involve the taking of an unacceptable risk. Therefore, the appropriate sentence for this offence alone is 18 months less one day. [ 61 ] The sentences for leaving the scene, too, vary depending upon the gravity of the circumstances.

The cases fall along a spectrum of culpability. At the one end are cases which show great moral blameworthiness - there is departure from the scene where the accused is involved in deception, calculation, and whatever other means are available to avoid liability, made worse by the degree of knowledge of the harm caused, but heedless of the need to help. On the other end are those cases where the accused reacted out of panic or an error in judgement, as was the case in Hindes . In my view, the facts in this case show it falls within the panic and error in judgement cases.

I reiterate that the evidence shows, because of the particular configuration of the accident, Mr. Williams, like his passengers, would not have known the harm he caused. Second, the fragility of his mental state is shown by the fact that when he is apprehended after the accident, the psychotic state is setting in. I would impose a sentence of just under six months for this offence. [ 62 ] In conclusion, it is my view that the appropriate sentences for these two offences taken together fall within the range of sentences which may be served in a provincial institution and the second step in Proulx is satisfied.

Step 3 [ 63 ] At the third step of the analysis, I must consider whether Mr. Williams is a danger to the community. I must be satisfied that the safety of the community would not be endangered by his serving his sentence in the community. [ 64 ] I am satisfied on the material before me that the safety of the community would not be endangered by Mr. Williams serving his sentence in the community. I so find for a number of reasons. First, Mr. Williams, through his evidence, has shown that he has accepted responsibility for committing these offences. Second, Mr.

Williams has taken responsibility for his drug abuse problems, has successfully passed drug testing for the past 18 months, and has agreed to undertake a program of therapy to deal with his personal problems. Third, Mr. Williams has no criminal record, and there is no evidence to suggest that he has participated in this type of behaviour before. Finally, there is evidence from Mr. William ’ s family and community that he has tremendous support from a large number of people who care for and support both he and his family.

Finally, the Crown has conceded that this step of the Proulx test has been met. [ 65 ] In the case of aboriginal offenders, the law as set out in R. v. Gladue , 1999 CanLII 679 (SCC) , [1999] 1 S.C.R. 688 provides that the Court should take heed of situations where the urban-aboriginal community of the offender is prepared to step forward and take responsibility for his successful rehabilitation. I think the same principle should apply in the non-aboriginal community. Here, Mr. Williams and his family are part of a close knit community.

Many members of the Church and people from many walks of life have stepped forward to attest to the strength of the family ’ s commitment to their children, to the strength of the community commitment to their member families, and to their support for this young man who they have known all his life. Step 4

[ 66 ] At the fourth step, it is necessary to apply the fundamental principles of sentencing, including the principles outlined in Proulx , to determine whether a conditional sentence is a fit and appropriate sentence in all the circumstances. I turn now to those principles. [ 67 ] Proulx commends the principles of restorative justice in appropriate cases. These principles involve the objectives of rehabilitation, reparation to the victim and community, the promotion of a sense of responsibility in the offender, and acknowledgment of harm done to the victim and the community.

The Court in Gladue , at para. 71 , described restorative justice in this way: In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender.

The focus is on the human beings closely affected by the crime ... [ 68 ] It may be difficult to understand the approach that the law takes to crimes such as the one for which Mr. Williams has been convicted. It is a form of negligence, that the law has also determined to be a crime when one drives in a manner which is a marked departure from that which can be expected of a reasonable driver in the circumstances. Clearly, the accused did not intend to hurt anyone. He took an unacceptable risk. Here is the problem in sentencing in a case like this.

I have on the one hand, the untimely, and tragic death of a young woman in the prime of life. The suffering of her family, particularly her mother and father, is beyond words and the experience of losing a child in these circumstances is beyond even the imaginable. On the other hand, I have a young man who is salvageable, and whose family and community have accepted him back and will do all that is necessary to support his rehabilitation. There is nothing that the Court can do to redress the wrong that was done to Cynthia Martin and her family. If there was I would do it.

However, I believe I am in a position to assist Mr. Williams to become a capable, contributing member of the community. In my view, in these particular circumstances, that can best be done by imposing a conditional sentence of imprisonment. [ 69 ] I noted that, in the submissions of the family, there are no statements of the desire to avenge Ms. Martin ’ s death through a harsh penalty for Mr. Williams. I think their fortitude in this respect is commendable, and find that it is consistent, in fact, with the law of sentencing.

I interpret the family ’ s involvement in these proceedings as, in part, an attempt to understand the incomprehensible; to find solace in the certainty of knowledge of what occurred; and to stand up for their daughter and her memory. As the justice system cannot ever make up for the loss of Cynthia is my hope that the Martin family will leave this Court feeling that their perspective has been ably presented and heard; that it is an important part of what we do. (

i) Rehabilitation and Reparation to the Victim and Community [ 70 ] I am satisfied that the objectives of rehabilitation and reparation to the larger community will be satisfied if Mr. Williams serves a global sentence of two years less a day in the community. (ii) Promotion of Sense of Responsibility and Acknowledgment of Harm [ 71 ] Mr. Williams has acknowledged his wrongdoing, the harm caused by this crime, and shown empathy for the victim, Ms. Martin, and her family, and expressed genuine remorse for what he has done. [ 72 ] In my view, the goal of restorative justice is met by imposing a sentence on Mr.

Williams to be served in his community. The restorative justice approach is one that seeks to restore the harmony that existed prior to the crime committed by the accused. I interpret this purposively; that is, in the broad and remedial sense. The sentence which I impose is an attempt to assist Mr. Williams to be completely rehabilitated and to find his rightful place in the community; and to require Mr. Williams to the extent possible to assume responsibility for what he has done by making reparations to the community. (iii) Denunciation and Deterrence

[ 73 ] In my view, this is a case as was contemplated by Chief Justice Lamer in Proulx , where society ’ s condemnation of Mr. Williams ’ conduct can be communicated by imposing strict conditions for a sentence served in the community, with the attendant stigma that living in the community under these circumstances entails. It is true to say that the notoriety that this case has attracted means that Mr.

Williams ’ conduct, in its most intimate detail, including the florid manifestations of his psychotic episode, has been well documented and available for all to see. [ 74 ] As was contemplated in Proulx , in my view, this is a case where deterrence can be achieved by sufficiently punitive conditions, including those available through the use of community service involving Mr.

Williams speaking to members of the public about the evils of the particular criminal conduct in which he has engaged. [ 75 ] In my view, because a combination of both punitive and restorative objectives may be achieved, a conditional sentence is more appropriate than incarceration. VII. DISPOSITION [ 76 ] Mr.

Williams is sentenced to a term of eighteen months less one day for dangerous driving causing death; and to a term of six months for leaving the scene of an accident with the intent to avoid civil or criminal responsibility, for a global term of imprisonment of two years less a day, to be served in the community. He is required to observe a series of strict conditions designed to help him maintain his resolve to lead a different life than that which lead to these offences.

Section 742.3 sets out mandatory conditions which are included. The conditions are detailed in Appendix “ A ” and include the strict requirements that Mr. Williams shall: (

a) keep the peace and be of good behaviour; (

b) abstain absolutely from the use of alcohol and non-prescription drugs; (

c) when required to do so by the Supervisor, on a monthly basis as he was required to while on judicial interim release, or when a peace officer or his sentence supervisor has reasonable suspicion that you have ingested alcohol or non-prescription drugs, supply such blood, breath or urine samples upon demand as may be necessary for the determination of the presence in the blood of the accused of any form of alcohol or other non-medically prescribed intoxicants or drugs; (

d) report to a Supervisor forthwith to make the necessary arrangements for the serving of his sentence and report thereafter when required by the Supervisor and in the manner directed by the Supervisor; (

e) for the period of 12 months he shall remain at all times within his parent’s residence or at an address as approved by his supervisor, and be available for telephone calls from his supervisor or his designate and for personal visits to his residence by his supervisor or his designate. He may not be absent from his residence except where specifically permitted by the Conditional Sentence Order, including for medical, spiritual, educational, and work purposes, and to a limited extent to access the necessaries of life.

After the House Arrest portion of his Conditional Sentence Order, he will observe a curfew by being confined to your residence from 10:00 p.m. to 6:00 a.m. every day until the termination of this Order, except for the limited purposes identified in the Order. (

f) refrain from associating with or being in contact with any persons that he knows or suspects to be involved in or with illegal drugs; (

g) diligently seek and maintain lawful employment or education, (

h) take a program of counselling or therapy for substance abuse, as may be directed by his supervisor; and take a program of therapy

with Dr. L.P. Mos of the Department of Psychology at the University of Alberta, for so long as Dr. Mos feels this is helpful. (

i) perform 240 hours of community service work within the community, which will include speaking to members of the public, if possible young people, about the problems relating to the criminal conduct for which he was convicted, if those opportunities can be arranged by his supervisor. This community service is to be completed no later than the end of the 15 th month of Mr. Williams’ sentence and written proof of such community service will be provided to his sentence supervisor no later than the end of the 16 th month of his Conditional Sentence, and (

j) reside with his parents at their home, and only change that residence with the approval of his supervisor or the court. [ 77 ] In addition, I direct a driving prohibition of seven years from today ’ s date, pursuant to s. 742 of the Criminal Code . I impose this prohibition for seven years because normally, the five year driving prohibition would commence after release from custody. [ 78 ] I will provide Conditional Sentence Order in draft form for the approval of counsel, which incorporates these terms. HEARD on the 3 rd day of February, 2003.

DATED at Edmonton, Alberta this 28 h day of March , 2003. __________________________ J.C.Q.B.A. Appendix A R. v. Williams CONDITIONAL SENTENCE ORDER The Court is satisfied that the appropriate sentence for the offence and the offender in this case within the meaning of s. 718.1 of the Criminal Code of Canada would be imprisonment for less than two years. The Court is also satisfied that it would not endanger the community if the Mr. Williams were allowed to serve that sentence in the community, subject to the terms and conditions hereinafter described. LENGTH OF SENTENCE Mr.

Williams is sentenced to a term of imprisonment of eighteen months, less one day for dangerous driving causing death; and to a term of six months imprisonment, consecutive, for leaving the scene of an accident with intent to avoid civil or criminal responsibility; for a global term of twenty-four months less a day, to be served in the community pursuant to s. 742.1 of the Criminal Code of Canada , to be followed by a period of probation of twenty-four months. ENTERING INTO CONDITIONAL SENTENCE ORDER The Accused shall report to the office of the Criminal

Section of this Court on or before 4:30 p.m. on the 28 nd day March, 2003, to enter into the Conditional Sentence Order. Should the Accused refuse to appear as required, or should the Accused refuse to enter into the Conditional Sentence Order, the Accused shall be taken into custody and serve the sentence herein imposed as a term of imprisonment.

CONDITIONS OF THE CONDITIONAL SENTENCE ORDER The offender shall for a period of 24 months less one day from the date of this order. (

a) Keep the peace and be of good behaviour; (

b) Appear before the Court when required to do so by the court; (

c) Report to a supervisor before 4:30 p.m., March 28, 2003 and thereafter when required by the supervisor and in the manner directed by the supervisor. (

d) Remain within the jurisdiction of the Court, which is the Province of Alberta, unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor; and (

e) Notify the Court or the supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation. You will provide to your supervisor, at your first meeting, the full names of all occupants of your residence and advise your supervisor in writing of any changes in the people who reside at your residence. OPTIONAL CONDITIONS 1.

For the period of 12 months you shall remain at all times within your residence or property attached thereto located at (address) or an address as approved by your supervisor, and be available for telephone calls from your supervisor or his designate at (Phone number, NOT a cell phone number) and for personal visits to your residence by your supervisor or his designate. You may not be absent from your residence except where specifically permitted by this order. 2. You may be absent from your residence for the following reasons only: (

a) To continue at your place of employment, education or training provided you have advised your supervisor in advance in writing of the time and place of the appointment, and the details of the route and means of travel. (

b) To attend at any health related appointments as may be scheduled provided you h ave advised your supervisor in advance in writing of the time and place of the appointment, and the details of the route and means of travel. (

c) To attend at such assessments, counselling or treatment as is ordered by the Court or directed or approved by your supervisor, provided you have advised your supervisor in advance in writing of the time and place of such assessments, counselling or treatment and the details of the route and the means of travel. (

d) To respond to any medical emergency situations that require you to be absent and thereafter, you are required to immediately return to your residence and immediately notify your supervisor of your absence and the place of and reasons for such absence. (

e) To shop for the necessities of life on one day per week, between 9:00 a.m. and 4:00 p.m. and for not more than 2 hours, provided you have advised your supervisor in advance in writing of the time and place of shopping and the details of the route and means of travel.

(

f) To attend at any religious services provided that you have advised your supervisor in advance in writing of the time and place of such religious service and details of the route and means of travel. (

g) To perform the 240 hours of Community Service work ordered by the Court. 3. During the period of House Arrest, for any absences from your residence you are to travel by way of the most direct route. 4. During the entire period of the Conditional Sentence Order, for any absences from the home you are to have with you at all times a copy of this Conditional Sentence Order, including any amendments thereto and any approvals from your supervisor or his designate as required by this Order. You are required to show a copy of this Conditional Sentence Order to any police officer upon request. 5.

During the entire period of this Conditional Sentence Order, you are not permitted to consume or have in your possession any alcoholic beverage or non-medically prescribed substance and are to take prescribed substances only in accordance with a medical prescription. 6.

When required to do so by the Supervisor, on a monthly basis as you were required to while on judicial interim release, or when a peace officer or his sentence supervisor has reasonable suspicion that you have ingested alcohol or non-prescription drugs, supply such blood, breath or urine samples upon demand as may be necessary for the determination of the presence in the blood of the accused of any form of alcohol or other non-medically prescribed intoxicants or drugs . 7.

After the House Arrest portion of your Conditional Sentence Order, you will observe a curfew by being confined to your residence from 10:00 p.m. to 6:00 a.m. every day until the termination of this Order, except for the reasons as listed in paragraph 2 herein. 8. You are prohibited from attending at any licensed premises where the primary purpose is the service of alcohol (e.g. bars and taverns) for the entire duration of this Conditional Sentence Order. 9. You will complete 250 hours of Community Service Work under the direction of your supervisor.

This community service work will be completed by no later than June 15, 2004 or as directed by your supervisor, and you will provide proof in writing of your completion of this work to your supervisor by no later than July 15, 2004. 10. You are to live with your parents at (address) or a residence approved by your supervisor in advance and in writing. WARNINGS TO ACCUSED / BREACH PROCEDURES Mr. Williams shall be provided with a copy of this Conditional Sentence Order upon entering into it. Mr. Williams is warned as follows: 1. Should Mr.

Williams be in breach of any of the terms of this Conditional Sentence Order, the Court may on application issue a warrant for the arrest of Mr. Williams to have Mr. Williams reappear before the Court. On the issuance of such a warrant, the running of

the conditional sentence is suspended pursuant to s. 742.6(10) of the Criminal Code of Canada , but Mr. Williams remains obligated to comply with the conditions of the conditional sentence pursuant to s. 742.60(1) of the Criminal Code of Canada . This means that the conditional sentence is, in effect, extended during the breach proceedings. 2. Should Mr. Williams be remanded in custody pending any breach proceedings, the amount of time spent in custody for such purpose is not reduced by operation of s. 6 of the Prisons and Reformatories Act . This means that Mr.

Williams will not be earning any mandatory remission during that time. 3. Should Mr. Williams be remanded in custody pending any breach proceedings, and Mr. Williams be in custody during the same time period for any other sentence imposed upon Mr. Williams, the period of time spent in custody does not count against the conditional sentence. 4. On the hearing of an application to prove that Mr.

Williams has breached the conditional sentence, the Court has jurisdiction to take no action, change the optional Conditions including by making them more severe or restrictive, or suspending the Conditional Sentence Order and directing that Mr. Williams serve a portion or all of the unexpired term of the conditional sentence.

Dated _______________ (month)_____ __________(day); 2003 at Edmonton _____ in Alberta. __________________________________________________ JUSTICE/CLERK OF THE COURT OF QUEEN ’ S BENCH I UNDERSTAND AND ACCEPT THE FOREGOING CONDITIONS OF THIS CONDITIONAL SENTENCE ORDER: ___________________________________ Accused Mr. Williams READ AND SIGNED THIS ORDER IN MY PRESENCE, AND EXPRESSED UNDERSTANDING AND ACCEPTANCE OF ITS CONDITIONS. ____________________________________ Clerk of the Court / Supervisor