R. v. Fitt, 2011 ONCJ 223

Information No. NR09 – 5255 Citation: R. v. Fitt , 2011 ONCJ 223 ONTARIO COURT OF JUSTICE Central South Region (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - GORDON FITT REASONS FOR SENTENCE Mr. Andrew Brown, for the Crown Mr. George Walker, Q.C. for Gordon Fitt NADEL, J.: Introduction [ 1 ] On October 21, 2009, Andrew Passero and Scott Heron drove home from Toronto after unsuccessfully running a horse in the third race at Woodbine. Mr. Passero was driving a 2005 black Dodge Ram pickup truck. Mr. Heron was beside him in the passenger seat.

They were driving in the right-hand lane – the slow lane – on the QEW going toward Fort Erie. It was about 11:15 p.m. and traffic was light. Scott Heron estimated that they were travelling at between 110 and 120 kilometres per hour. Neither man was wearing his seat-belt. They had just crossed the Welland River overpass when Mr. Passero told Mr. Heron to “hang on” as he placed his right arm across Heron’s chest to restrain him. Heron grabbed for the handle above his door when the pickup truck was violently struck from behind. [ 2 ] Mr. Passero and Mr.

Heron were rear-ended by Gordon Fitt, who was hurtling down the highway behind them at 189 kilometres per hour. Fitt was also returning to Fort Erie with his girlfriend, Dodie Barker. He was driving a red Dodge Charger and he and Dodi Barker were properly belted in. Moments before the collision, Dodi Barker sleepily looked up and saw truck lights so far ahead that she nodded back off to sleep without giving them a further thought. Gordon Fitt, however, did not see the pickup truck ahead of him until it was too late for him to safely manoeuvre around it.

He offers no explanation for not seeing and reacting to it. [ 3 ] When Fitt finally appreciated the danger he had created by driving at that speed on a highway he tried to move to the left and go around the pickup truck. He was travelling too fast and he was too close to the truck when he tried to get by. He drove into the left side of the truck’s rear bumper sending the truck into a rollover to the right. Mr. Passero and Mr. Heron were ejected from their vehicle. [ 4 ] As a result of Gordon Fitt’s dangerous operation of his motor vehicle Andrew Passero died from the trauma that he sustained.

Scott Heron and Dodi Barker both suffered bodily harm.

The Victims and Their Injuries [ 5 ] Andrew Passero was 39½ years old when Gordon Fitt caused his death. He was a happily married father of two boys. He survived the accident for a brief period and was taken to the Greater Niagara General Hospital, where his death was pronounced. According to the post mortem examination conducted on his body, he died from blunt force trauma to his lungs and chest. That trauma included a tear at the root of his aorta and significant bleeding in his lungs. [ 6 ] Scott Heron was a 13 year veteran of the Niagara Regional Police Service in October of 2009.

He is not currently working because of the injuries he sustained in the accident. He was ejected from Mr. Passero’s pickup truck and felt excruciating pain. After being taken to the Greater Niagara General Hospital he was air-lifted by helicopter to the Hamilton General Hospital. His injuries included cuts to his left hand together with three severed tendons in that, his dominant, hand. He sustained a badly torn left shoulder rotator cuff injury together with six broken ribs, a bruised heart and numerous lacerations to his forehead. A pre-existing left knee injury was also aggravated. [ 7 ] Mr.

Heron had surgery on his left hand. He spent almost a full day in the trauma unit before being moved to Intensive Care for two more days of hospitalization. He continues to see his family physician on a monthly basis and his hand specialist every three months. He takes physiotherapy for his hand three days a week as he continues to work on remobilizing his left hand. In addition, he continues to suffer from a loss of feeling in his left arm. He undergoes either chiropractic or massage therapy Monday to Friday.

He remains unable to resume his duties as a police officer or to work in a construction business he had developed prior to this collision. [ 8 ] Dodie Barker’s next clear recollection after seeing the pickup truck’s lights far ahead of her was waking up in the Hamilton General Hospital. She described herself as being black and blue from head to toe. Her eyes were swollen shut and she had glass in her left eye. She sustained a knee injury that required surgery and at the time of the preliminary inquiry conducted in this matter she was scheduled to have her right rotator cuff surgically repaired.

She suffered a closed head injury and wore a neck brace for six months. She continues to suffer from headaches and continues to take physiotherapy and occupational therapy. The Airbag Control Module Evidence [ 9 ] The airbag control module from Mr. Fitt’s Dodge Charger was examined as part of the investigation into this collision. The airbag control module records a variety of data about a vehicle’s operation in the seconds prior to an impact, including the speed of the vehicle prior to impact as well as when the brakes are deployed. That examination disclosed that Mr.

Fitt was travelling at 189 kilometres per hour prior to the impact. At .3 seconds prior to impact Mr. Fitt had reduced his speed to 187 kilometres per hour. At .2 seconds prior to impact he had reduced his speed to 183 kilometres per hour and at .1 seconds prior to impact his speed was 178 kilometres per hour. The airbag control module also disclosed that Mr. Fitt’s brakes were “open”, that is to say, not engaged, 2.0 seconds before the collision. That fact is significant because Mr. Fitt had a clear and unobstructed line of sight to Mr.

Passero’s pickup truck for substantially more than six seconds prior to colliding with Mr. Passero’s vehicle. The Accused’s Circumstances [ 10 ] Gordon Fitt is 40 years old. He is married and has three children. He has a grown son from an earlier failed union and two boys, now 16 and 12, with his current spouse. He has an old criminal record as well as a lengthy series of provincial offence convictions that span the “gap” in his criminal record. Prior to October 21, 2009, his criminal record consisted of the following entries: October 29, 1990 Assault, s. 266 $230 or 10 days in default Niagara Falls, Ont.

January 16, 1992 Over 80, s. 253(b) $600 & $90 or 20 days in default Prohibited from driving for 1 year October 21, 1992 Driving while Disqualified, s. 259(4) 30 days [ 11 ] Mr. Fitt was first licensed in October of 1986. His driving record spans the gap between October of 1992 and October of 2009. It contains 19 convictions, other than his Criminal Code convictions, which also appear on that record. His first provincial offence was entered on February 23, 1987 and the last was imposed on August 7, 2008, which is about 14 months prior to the crimes for which he is being sentenced.

The various offences contained in it can be grouped as follows: one non-speeding moving violation, (failure to stop at an intersection); three seatbelt violations; four convictions for operating a motor vehicle without insurance; five documentary or licensing violations; and,

six speeding violations. [ 12 ] Despite his criminal record and despite these 19 other infractions Mr. Fitt had an extensive and consistent work record as a long- haul transport truck driver and broker. At the time of this collision he was self-employed, running his own trucking business, Gordon Transport. An extensive number of reference letters and other supporting materials were filed as Exhibits “5”, “6” and “7” on his sentencing hearing. Those references lauded Mr. Fitt’s personal attributes, his family values and his professional driving abilities.

Among other plaudits, he was said to have driven two million accident-free miles over a ten-year period. Additionally, a number of former employers stated that, if and when he becomes eligible to drive once again, they would gladly hire him. The Victim Impact Statements [ 13 ] In a case like this one – a case of an untimely, tragic and completely avoidable death – the reading into the record of the victim impact statements is a heart wrenching experience. That difficult process was performed by Mr. Brown, the prosecutor, in a very professional manner.

But, his manner notwithstanding, that process could not help but be emotionally charged; so much so, that it brought many in the courtroom to tears. The grief given voice to by Andrew Passero’s surviving family members in those victim impact statements was eloquently and fervently expressed. Andrew Passero is survived by his parents, his brother, his wife and his two sons. For parents to bury a child, for young sons to lose their father and for a wife to lose her husband is a tragedy, especially since it was so completely avoidable. Mr.

Passero’s death has occasioned misery for all of his surviving family and friends but in addition it has brought uncertainty to some, especially to his sons and widow. That misery and those feelings of uncertainty and even of fear or dread may never end for some members of his family. In addition, Gordon Fitt has victimized his own family. His actions have cast a pall over them, too and his actions continue to work hardships on them. [ 14 ] Mr. Fitt’s crimes have also badly skewed the lives of Scott Heron and Dodie Barker.

Both of them continue to suffer physically from the serious injuries they sustained in the collision that Mr. Fitt caused. Likewise, both will continue to suffer psychologically from the debilitating emotions they feel as a result of this collision. Each will also continue to suffer financial losses from their inability to work at their respective occupations and in their respective endeavours. The Position Of The Crown [ 15 ] The Crown seeks a sentence of four years in the penitentiary together with a ten year licence prohibition.

It seeks to justify this submission on the basis of all of the following submissions. First, that although there was a collision, that collision was not an “accident”. It was a totally avoidable crash caused by a mature offender who, by virtue of his professional training and experience knew the dangers of the highway, the dangers of failing to keep a proper look out and the dangers of speed. In a compelling

summary of the consequences of this crime Mr. Brown submitted that a life was lost, families were shattered, careers were interrupted and a community was shaken. The last comment might seem hyperbolic until one learns that several thousands of people came to Andrew Passero’s visitation and funeral, to pay their respects and offer condolences to his family. [ 16 ] Mr. Brown submits that Gordon Fitt is solely responsible for his choices and actions which led to him killing one person and severely injuring two others.

He urges that 4 years and a maximum driving prohibition is a fit sentence, one that, in his submission, is proportionate to the gravity of these offences and proportionate to Mr. Fitt’s degree of responsibility in the commission of these offences, as required by s. 718.1 of the Code . [ 17 ] In the Crown’s submission, the fact that Mr. Fitt drove professionally is an aggravating feature of his crimes. The Crown submits that as a professional driver, Mr.

Fitt ought to be held to a higher standard of behaviour so that his failure to drive safely, given his training and experience, ought to attract a more punitive sentence. The Crown relies upon comments made in some of the many cases submitted by counsel [1] in support of that submission. The first case is R. v. Rij , [1993] O.J. No. 4381 (Gen. Div.) at paragraph [10] [2] where a sentence of five years was imposed after a trial on one count of dangerous driving causing death and a further count of dangerous driving causing bodily harm.

The death and bodily harm resulted from Rij driving his five-ton truck through a red light at a busy intersection. That offender had two prior convictions for dangerous driving. On appeal, reported at [1994] O.J. No. 2850 (C.A.) , the Court ruled that the sentence imposed upon Rij was not unfit, given his particular circumstances. Another decision that refers to the professional driving experience of an offender is R. v. Singh , [2010] O.J. No. 4032 (S.C.J.) . Singh drove his dump truck into an intersection against a red light and killed a woman who was making a left turn.

One of the cases referred to in Singh at paragraph [22] was R. v. Du Jardin , [2009] O.J. No. 636 (S.C.J.) where the sentencing court noted that “truck drivers are required to be specially trained and licensed because of the enormous consequences that can flow from dangerous driving conduct.” [18] While conceding that Mr.

Fitt has a good work history as a professional driver, in the sense that he was gainfully and productively employed, the Crown submits that his driving record demonstrates a consistent and persistent history of refusing to follow rules contained in a variety of statutes that he ought to have obeyed; rules designed to protect other members of the public. The Crown submits that it was his pattern of irresponsible behaviour, demonstrated by his multiple driving convictions, which led to his current crimes. [19] The Crown submits that there are factual circumstances that increase Mr.

Fitt’s responsibility for his crimes. Those circumstances include all of the following: • he was very familiar with the stretch of highway where he drove dangerously; • construction was occurring on that stretch of highway, during daylight; • as a result, there were many warning signs posted prior to the collision site; • all of these factors should have been compelling indicators to go slower; • finally, despite all of the foregoing he had a completely clear and unobstructed line-of-sight in front of him so that he had no excuse for not seeing Mr.

Passero’s large pickup truck ahead of him. [20] The Crown submits that a four year sentence is warranted both by Mr. Fitt’s culpability and by the severity of the consequences

of his actions: one death and two badly and likely permanently injured people. In support of this submission, the Crown referred to the comments made in the many victim impact statements in exquisitely excruciating detail. Additionally, the Crown submitted that this level of penalty is required given Mr. Fitt’s prior Criminal Code convictions and his continuous record of driving infractions. All of that, in turn, militates in favour of a maximum driving licence prohibition, in the Crown’s submission. From the Crown’s perspective the need to protect the community overrides Mr.

Fitt’s professional aspirations so that he will have to find a new way to support himself and his family when he is once again at liberty. The Position Of The Defence [21] Mr. Walker’s position was that when the facts of this case are considered together with Mr. Fitt’s circumstances, an appropriate penalty is a reformatory sentence of five to 12 months in duration, together with a driving prohibition of three years. Mr.

Walker maintains that a sentence in that range accords with a number of cases of sufficient similarity to be consistent with the requirement that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, (s. 718.2 (b)). [22] Mr. Walker began his submissions in support of his sentencing position by responding to several of the submissions made by the Crown. He described the circumstances that gave rise to some of Mr. Fitt’s driving offences, in an effort to diminish the significance of some of those entries.

For example, he submitted that his client’s first infraction occurred when he was just 16 years old and had purchased a “dirt bike” and used it without it being plated; likewise, he submitted, that Mr. Fitt’s May 22, 1991 conviction for speeding 87 kilometres per hours in a 60 kilometre per hour zone was not work related. In addition, Mr. Walker noted that Mr. Fitt was doing a weekly 3,000 mile long-haul run to Florida and yet he committed few speeding violations for that considerable number of miles travelled over a number of years.

Further, those that he did commit were between 16 and no more than 29 kilometres over the posted speed limit. Finally, in this vein, Mr. Walker noted that Mr. Fitt’s July 21, 2004 conviction for not having his insurance “pink slip” with him related to his personal vehicle and not to a commercial vehicle. [23] Turning to the statements made in a few of the cases to the effect that truck drivers ought to be held to a higher threshold of behaviour than other members of the public, Mr. Walker submitted that those comments were merely that, commentary .

More importantly, it was the defence submission that those comments do not amount to a principle of sentencing that has general application, and in any event it would not apply on the facts before the court. In my view, Mr. Walker is correct that there is no principle of sentencing requiring courts to impose more punitive sentences on professional drivers, per se , for driving offences. Mr. Walker is also correct that Mr. Fitt was not driving in a professional capacity when he slammed into Mr. Passero’s pickup truck.

However, his prior training and experience as a professional driver is an aggravating feature of his crime because he knew better and yet persisted in a dangerous course of conduct. Likewise, his continuous record of driving infractions is also an aggravating feature of his circumstances. [24] Mr. Walker characterized the pre-sentence report as a being a positive one. He stressed that Mr. Fitt’s offences have had a devastating effect upon his family, too. Despite having only a grade ten education and despite fathering his first child at 17, Mr.

Fitt has bootstrapped himself and became a conscientious and safe long-distance truck driver, with a continuous and productive work history, between 1990 and 2009. In the three years prior to the collision, Gordon Fitt successfully ran his own transport company, Gordon Transport, which employed two other drivers. [25] About 6 months prior to the collision, he became separated from his wife. Ironically, as a result of these charges, they are once again living under the same roof, albeit separate and apart. His wife acted as his surety so that he continues to live with her and his sons. [26] Mr.

Walker highlighted the effects these crimes have had on Mr. Fitt and his family. His bail terms preclude him from operating a motor vehicle. As a result he and his family have lost their home, his trucking business and he became a bankrupt. He can no longer work in the only field he knows so he now acts as a house-husband, collecting E.I. in rented accommodation, while his wife supports the family as well as she can. His sons feel somewhat resentful about their new financial condition and his 16-year-old blames him for this accident and the change in the family’s circumstances.

More significantly, because Fort Erie is such a small community and Andrew Passero was so well known, loved and respected, Mr. Fitt’s youngest son has been ostracized by his peers because of his father’s crimes. As a result, he has had to leave the sporting teams and leagues in which he was involved. [27] Mr. Walker noted the lack of the aggravating feature of drug or alcohol use or abuse in the circumstances of the collision or in Mr. Fitt’s life at all. Additionally, despite the belief of the victims and their families to the contrary, Mr.

Walker stressed that Gordon Fitt was remorseful for his actions and that he has repeatedly expressed his remorse to many people, including Ms. Jacques, the pre-sentence reporter; viz that he “will never forgive himself for killing a great man, and a great father, son and husband.” Further, he ‘had no excuse for going that fast.’ [28] Before referring to some of the cases relied upon by the defence [3] , I propose to make a passing reference to Mr. Fitt’s diagnosed attention deficit disorder.

He did not always take the medications prescribed to him for that disorder and he was not taking them during the period of his life when this collision occurred. That said, any suggestion that those circumstances may have played a

part in these crimes is simply speculative given the facts admitted on these guilty pleas and the evidence adduced on these sentencings. Cases Relied Upon By The Defence [29] In R. v. Costa , [2006] O.J. No. 4291 (S.C.J.) Reilly J. imposed a sentence of two years less one day and three years of probation for one count of dangerous driving causing death, after a trial. The offender was racing another car and not keeping a proper lookout when he collided with a vehicle in which the deceased was a passenger. The deceased was not belted in and he was ejected from his car and died.

Costa was speeding no less than 35 kilometres per hour over the 50 kilometre per hour posted speed. He had an “ abominable ” driving record with multiple prior speeding convictions but was nonetheless described as “an otherwise decent young man …

responsible, for the death of another young man, from a decent, hard working family.” (at [18]) Justice Reilly felt that Costa was nottruly remorseful and that Costa “still [did] not get it”. (at [24]) Further, Costa went on record to say that he would not stop speeding andJustice Reilly described Costa as having no sense of responsibility with respect to automobiles and that “there is no way that [Costa]should be on the road.” (at [36]) In the result, Costa was prohibited from driving for ten years, in addition to imposing a maximumreformatory sentence.

Costa’s conviction and sentence appeals were dismissed by the Court of Appeal, subject to a technical correctionrespecting the driving prohibition. (R. v. Costa, [2007] O.J. No. 1111 (C.A.)). The court held that the “custodial term was within therange and a maximum driving prohibition was called for given Costa’s attitude and the need to protect the public. While Costa iscertainly instructive, he was much younger than Mr. Fitt and he only faced a one-count indictment. [30] In R. v. Mansour, [2002] O.J.

No. 1658 (S.C.O.) McIsaac J. imposed a sentence of nine months and 12 months consecutive fortwo counts of dangerous driving causing death after a trial, together with a five year driving prohibition. An earlier trial on charges ofcriminal negligence causing death resulted in acquittals. The facts in Mansour are nothing at all like the facts in Mr. Fitt’s case. TheCrown sought a three year sentence while the defence sought a conditional one. Mansour had no prior record of any kind.

In my view,the facts of that case, the procedural history of the case and the personal circumstances of the offender in that case make that decision anunhelpful precedent. [31] In R. v. Kippax, [2010] O.J. No. 2021 (S.C.J.) Baltman J. imposed a sentence of 3 years’ imprisonment and a ten year drivingprohibition for one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm. The Crownurged a four year penitentiary term and a ten year driving ban while the defence submitted that a conditional sentence of 15 months and aten year driving ban was called for.

The facts in Kippax are distinguishable from the facts in this case[4] but there are many factualparallels between these two cases including the factor of excessive speed, the age and level of maturity of the offenders, the fact of a priorcriminal record[5] and the existence of numerous prior speeding infractions. Justice Baltman found Kippax’s speeding convictionsdemonstrated an unabated inclination toward aggressive driving.

In addition Justice Baltman took pains to review and group a numberof the cases along the continuum of sentences imposed for the offences of dangerous driving causing death or bodily harm. [32] Justice Baltman noted that lower sentences often featured youthful offenders who had pleaded guilty, had no prior records andexhibited genuine remorse. Mid-range sentences included an amalgam of aggravating and mitigating features. In a case where one ofthe highest penalties was imposed the facts were aggravating, the consequences serious and the accused had a significant prior andrelated record.

Justice Baltman identified the primary sentencing goals as being denunciation and general deterrence. In light ofKippax’s inclination toward aggressive driving he found specific deterrence to be an important consideration, too. Kippax is a currentprecedent that I find of considerable assistance. [32] In R. v. Shelly, [2002] O.J. No. 1442 (S.C.J.) Henderson J. imposed concurrent sentences of 18 months’ incarceration afterShelly’s pleas of guilty to two counts of dangerous driving causing death. Shelly showed great remorse. He had no prior criminal recordand he was 27.

Most significantly the sentence imposed was jointly submitted as being appropriate. That is not the case before mewhere there is a very wide divergence in positions. In addition, the facts of the cases are not similar, although a failure of lookout iscommon between them. Further, many of the factors found in the lowest third of sentences, as categorized by Justice Baltman, obtain inShelly. [33] In Singh, [2010] O.J. No. 4032 (S.C.O.) Boswell J. imposed a sentence of two years’ imprisonment and a five year drivingprohibition on Singh, after a trial on one count of dangerous driving causing death.

Singh was found to have been speeding through a redlight at 20 kilometres over the posted limit when he crashed broadside into the deceased who was turning left. Justice Boswell imposedthis sentence after a review of Singh’s circumstances including his criminal record and after a review of a number of the sentencingcases. I note first that the case does not support the sentencing position taken by Mr. Walker and second, in light of R. v. Rij, [1994] O.J.No. 4381 (C.A.) and given Singh’s record, it is very unlikely that I would have arrived at a sentence as modest as that imposed by JusticeBoswell. [34] In R. v.

Winsor, 2010 ONSC 2636 , [2010] O.J. No. 2254 (S.C.O.) Wein J. imposed a sentence of five months’imprisonment after Winsor pleaded guilty to one count of dangerous driving causing death and one count of failing to remain at thescene of an accident. The facts, once again, are nothing like Mr. Fitt’s crimes and Winsor’s personal circumstances are alsodistinguishable. Further, it is likely that had this offender not voluntarily surrendered, he would never have been found and subjected topunishment.

Finally, the Crown’s position in that case was a one year jail sentence while the defence sought an intermittent sentence. While this case is an example of a very modest sentence for the offence of dangerous driving causing death, it is not binding on me andmore importantly, the facts of the offences and the circumstances of that offender are so different from Mr. Fitt’s situation that, likeMansour, it is not very helpful to me. Dangerous Driving Sentences [35] Sentences have tended to increase in severity for dangerous driving causing death. (R. v. Boukchev, (ONCA), [2003] O.J.

No. 3944 at [6] (C.A.)) In that case, after crediting the offender with 9 months of pre-sentence custody, the trial judgeimposed a sentence of 21 months, for an effective sentence of 2½ years. On a Crown appeal, after reviewing the facts, the Court ofAppeal made the observation with which this paragraph commences and increased Boukchev’s sentence to 4 years and 3 months; i.e., a 5year sentence, plus a lifetime driving prohibition.

While the facts in Boukchev[6] are very different from the facts before me, Boukchev isinstructive for its didactic declaration that sentences have been tending to increase in severity for dangerous driving causing death. Thereason for the increase in the severity of sentences for dangerous driving causing death is “the heightened recognition of the need forgeneral deterrence and protection of the public.” (Boukchev at [6]) [36] The range of sentence for dangerous driving causing death is very broad. (R. v. Phillips, (ON CA), [2005]O.J.

No. 155 (C.A.) at [21]) While the crime of dangerous driving causing death usually attracts a lighter sentence than sentencesimposed for criminal negligence causing death, there is a wide divergence of punishments for both offences. (R. v. Lam, (ON CA), [2003] O.J. No. 4127 (C.A.)) In Lam the Court of Appeal rejected the Crown’s submission that there is a sentencerange of between 3 to 5 years for the commission of the offence of criminal negligence causing death, which, as noted above, usuallyattracts a heavier sentence than those imposed for dangerous driving causing death.

[37] That said, Lam confirms the instruction from R. v. Linden (2000), (ON CA), 147 C.C.C. (3d) 299 (Ont. C.A.)that because the specific facts in issue inform a sentence for criminal negligence causing death there is no set range of sentence for thatoffence. The same must be said for the offence of dangerous driving causing death.

As noted in Lam, at paragraph [9], “the cases do notdemonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstance in which this offence can becommitted.” [38] Still, there is a consensus in the cases about the aggravating effect of various commonly occurring factors.

Aggravating factorsthat may lead to a more severe sentence include: • reckless conduct, including the temporal span of the conduct; • the consumption of alcohol or drugs; • multiple deaths; • racing; • the offender’s prior criminal or driving record; • flight from police; and, • leaving the scene of an accident. [39] Since there is no set “range” of sentence, precedents from similarly situated offenders who have committed factually similarcrimes may offer some assistance in arriving at a fit sentence.

For example, in Lam the Court of Appeal, having noted similarreformatory sentences in other cases of motor vehicle criminal negligence causing death, upheld Lam’s sentence of two years less a day,plus three years’ probation and a lifetime driving prohibition. The Court of Appeal noted that the sentence could have been higher butthat it did not disclose an error in principle, notwithstanding that it could have been higher.

Moreover, Lam spent 29 months on strict bailrelease terms and he had an “impeccable” background and was of prior good character. [40] Given that the sentences for dangerous driving causing death are driven by the almost infinite variety of circumstances in whichthis offence can be committed, the sentencing process requires “a careful examination of the circumstance of the particular case inquestion, the nature and severity of the criminal acts perpetrated … and of the situation of the individual offender.” (R. v. Wright, (ON CA), [2006] O.J. No. 4870 (C.A.) at [24])[7] The Sentence [41] In arriving at Mr.

Fitt’s sentence I have considered the facts of his crimes and their consequences, his personal circumstances,including his prior criminal and driving records and the principles of sentencing as provided by the Criminal Code together with theirapplication in the precedents referred to. [42] Mr. Fitt’s prior criminal record ends on October 21, 1992, 17 years to the day from the commission of his current crimes. I ammindful of the direction from the Ontario Court of Appeal that it would be an error to fail to apply the “gap” principle by placing undueemphasis on Mr.

Fitt’s prior criminal record given its age and the extended gap between his last conviction and these most recentoffences. That gap demonstrates Mr. Fitt’s prospects for rehabilitation despite the serious crimes that he has committed. (see R. v.Carroll, 2010 ONCA 378 , [2010] O.J. No. 2154 (C.A.) at [2] and R. v. Nembhard, [2010] O.J. No. 2420 (C.A.)) On the otherhand, Mr. Fitt’s provincial driving record almost spans that “gap” and that too is a matter I am obliged to weigh in the balance. (see R. v.Mathers, [2009] O.J.

No. 1477 (C.A.) at [3] and Kippax referred to above at [31]) [43] There are many aggravating features to these crimes. Foremost was Mr. Fitt’s decision to drive his car at 189 kilometres perhour in the slow lane of the QEW at a point where the posted speed limit was 100 kilometres per hour. He drove at that dangerous speedwith a sleepy passenger who had no idea about the danger he was exposing her to. Equally aggravating was his decision to drive at thatoutrageous speed without keeping a proper lookout. As a result he failed to see what was plainly in front of him to be seen; namely, Mr.Passero and Mr.

Heron travelling ahead of him in a very large pickup truck equipped with illuminated running lights. A very significantaggravating feature of these crimes is their result. He killed Andrew Passero and severely injured Scott Heron and Dodie Barker. Nosentence that I can impose will rectify Mr. Fitt’s actions. The sentences I impose are not a reflection of the value of a life or the value ofan injury. No punishment will bring Andrew Passero back nor make Scott Heron or Dodie Barker whole. I can only sanction Mr. Fittwithin the limits of the controlling law and precedents. [44] Considering the speed at which Mr.

Fitt was travelling it is not a misuse of language, in my view, to describe Gordon Fitt’s actionthat night as

an act of racing. While it is true that he was not competing in a race against another car on the roadway, he was racing hiscar down the highway no less than a racing car driver might do when practicing on a track empty of any cars other than his own. [44] There are, however, many mitigating facts and circumstances that I must also take into account in arriving at a fit sentence. Those mitigating factors include: • Mr. Fitt’s pleas of guilty;[8] • Mr. Fitt being, I find, truly remorseful for his actions; • Mr. Fitt having no prior convictions for dangerous driving; • neither alcohol or drug use having played any

part in his crimes; • the fact that he did not leave the scene or attempt to flee;

• the fact that he has been publicly identified and shamed for his crimes and he has seen his family suffer as a result of his actions, though not anywhere as much as the families of his victims. [45] In arriving at the sentence I am about to impose, I have attempted to conduct a careful examination of the circumstances of this case including the nature and the severity of the criminal acts that Mr. Fitt perpetrated as well as a careful examination of Mr. Fitt’s situation. I have been assisted in doing so by the submissions of counsel who referred to those facts and circumstances during their submissions.

In addition, I have read and considered all of the exhibits, together with the many precedents provided to me by counsel, as well as reading other relevant judgments. Having conducted that careful examination, I impose sentences as follows: (

i) on the count of dangerous driving causing death you, Mr. Fitt, are committed to the federal penitentiary to serve a sentence of three years’ imprisonment; (ii) on each of the two counts of dangerous driving causing bodily harm you are sentenced to 15 months’ imprisonment on each count to be served concurrently to each other and concurrently to the three year sentence previously imposed. [46] In addition, pursuant to s. 259 (2) (

b) of the Criminal Code you are prohibited from operating a motor vehicle on any street, road, highway or other public place for the periods to which I have sentenced you to imprisonment and for the following five years. In my view, this total period of eight years is a sufficient period of prohibition to protect the community and to deter you specifically from ever again engaging in such dangerous driving conduct. You will be close to 50 years of age before you are next entitled to drive.

Moreover, you have been precluded from driving since your release on bail, in early November of 2009. [47] In light of your present financial circumstances and the extensive period of incarceration to which you have been sentenced, I waive the victim fine surcharges. Dated at St. Catharines this 29 th day of April 2011 __________________________________ J.S. Nadel (O.C.J.) [7] R. v. Wright is a home invasion sentencing case. It is useful by analogy because the appropriate sentencing range for home invasion crimes is, like dangerous driving causing death cases, too elastic to be very helpful.

As a result, Blair J.A. directs sentencing judges to apply the nuanced approach described in paragraph [24] of that judgment.