R. v. Febbo, 2023 ONCJ 162

CITATION: R. v. Febbo , 2023 ONCJ 162 DATE: 2023.03.29 St. Catharines ONTARIO COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING — AND — JASON FEBBO Before Justice Fergus ODonnell Reasons for sentence delivered on 29 March, 2023 Mr. M. Sokolski...................................................................................................... for the Crown Ms. E. Burton........................................................................... for the defendant, Jason Febbo Fergus ODonnell J.: Overview 1 .

About fourteen years ago, soon after I became a judge, when I was imposing sentence on my first "routine" impaired driving cases-- by "routine" I mean someone who had been caught by the police but had not been in a collision and had not injured or killed anyone--I first spoke to the offenders about the seriousness of their crimes. I spoke of the danger they created for others, for themselves and for their community.

I spoke to them about the enormous role that pure chance plays in whether an impaired driver gets home undetected, with "no harm done", or whether he ends up killing someone, perhaps a stranger, perhaps a passenger, perhaps himself. I spoke of the outsized impact that impaired drivers have had on society for year after year, decade after decade. 2 . One of the court clerks predicted that, within less than a year, I would have stopped giving those remarks. To this day, I still do. I expect I always shall. 3 .

I shall continue because the Criminal Code defines the protection of society as the "fundamental purpose" of sentencing and one hopes when imposing sentence that awareness can change behaviour and awareness of the consequences of one's behaviour can protect society from future danger. No other criminal offence historically comes remotely close to impaired driving offences in terms of their real-life, serious day-to-day impact on Canadians, their families, their friends and their communities. [1] This has been true for a very, very long time, but people do not seem to get the message.

When I refer to serious, day to day impact, I am talking about Canadians being killed every single day by impaired drivers, I am talking about Canadians suffering debilitating, life-altering injuries. These are lives cut short and life potentials compromised. I am talking about the impact on victims and their families, an impact that, for those who survive and for the survivors of those who die, will resonate for decades. 4 . The message is not complicated. It is not new. It is not open to debate. Every impaired driver is a potential killer.

Every incidence of impaired driving, however it turns out, is nothing less callous than a game of Russian roulette with the lives of pedestrians, of cyclists, of other motorists and their passengers and of one’s own passengers and oneself. All of the tragedy is perfectly foreseeable. All of the tragedy is easily avoided. It does not take high-level reasoning capacity to know that one should not drive when one has been consuming drugs or anything more than a very small amount of alcohol. 5 .

Overlain on these daily tragedies is a remarkable but persistent dissonance: the people who are killing and maiming their fellow Canadians day in and day out are not typically inherently awful human beings. One often hears about how they have no criminal records, they are engaged, pro-social members of their communities, they are the person you would want to marry your child or to be

your neighbour. I heard the same in this case. But every year they kill far more of us than gun-toting bandits whose crimes capture the headlines. And they do so despite the availability of alternatives such as crashing on someone’s couch, walking home, taxis and ride- share services. Again and again and again. Over and over and over. 6 . This case is in most ways no different from countless other cases. 7 . It is three years ago, the wee hours of the morning of 1 February, 2020.

Jason Febbo, a then forty-five year old father of two with no criminal record and no charges before the courts, is driving his 2006 Sierra truck in a residential subdivision in the north end of St. Catharines. His blood contains fentanyl, etizolam and flualprozalam, all of which are drugs of abuse, as well as methadone, which is an opioid used in drug maintenance programmes for opioid abusers. All four drugs have impairing qualities in relation to one's ability to drive.

His blood also contains naloxone, which is an opioid antagonist used to counteract the central nervous system depressant effects of drugs like fentanyl. [2] In that condition, Mr. Febbo should be nowhere near the driver's seat of a motor vehicle. He is a clear and present danger to anyone who is out and about at the time. 8 . That morning Mr. Febbo first hits a parked, unoccupied Toyota Corolla on Rochelle Drive, a residential street within a subdivision. Rather than stopping as he was required to do, he immediately drives off.

He has pleaded guilty to a charge of failing to remain at the scene of a collision because of that. 9 . Within a couple of minutes of hitting the Corolla, Mr. Febbo is driving southbound on Bunting Road, a road that is as straight as an arrow, flat, with good visibility, a road that should pose no challenge whatsoever to a reasonably capable driver. From Rochelle Drive to this point, Bunting Road is one lane in each direction and is lined by either houses or schools. Driving at a speed estimated to have been 122 km/h in a 50 km/h zone or two-and-a-half times the speed limit, Mr.

Febbo pulls into the oncoming northbound lane to pass another southbound vehicle. In doing so, Mr. Febbo's truck strikes Mr. Gavin Colquhoun's northbound compact car head-on and propels Mr. Colquhoun's car into the path of a northbound tow truck, resulting in a second collision for Mr. Colquhoun. 10 . Both Mr. Febbo's truck and Mr. Colquhoun's car were demolished, each landing on a lawn across the street from the other. [3] 11 . Mr.

Colquhoun's injuries as described in the agreed statement of facts were life-threatening and included a broken femur, broken knee, broken shoulder, fractured ankle, many fractured ribs, nerve damage, numbness, constant pain and a concussion. His treatment included multiple surgeries and thirteen days on a ventilator at an out-of-region hospital before he was returned to Niagara to continue his recovery in hospital including time limited to a wheelchair. He suffered from prolonged memory and speech issues. 12 . Mr. Colquhoun is a young man, almost a generation younger than Mr. Febbo. Like Mr.

Febbo, he has two children, although Mr. Colquhoun's children are a lot younger. 13 . As things turned out, Mr. Febbo was not charged until January, 2021, about ten months after the offences. He was charged with failing to remain at the first collision on Rochelle Drive and causing bodily harm to Mr. Colquhoun by driving while impaired by drugs. By the time his guilty plea and sentencing submissions were made, it was almost exactly three years since the offences. I do not refer to that as a reflection on how long it took Mr.

Febbo to resolve the charges, but because of this: it allows for a long-term insight into the consequences of Mr. Febbo’s crimes for Mr. Colquhoun. Mr. Colquhoun's victim impact statement, three years after the collision, starts with: "You killed me that night. Your actions that night killed the happy, smiling, giggling, big guy. The man you see before you is a husk of who I once was.... I am no longer the same daddy that I was then.....You have ruined my life." Mr. Colquhoun then outlines the consequences and near consequences of Mr. Febbo's decision that night including: [4] (

a) Mr. Colquhoun's inability to 'run and jump and play for hours' with his daughter; (

b) his heartbreak whenever his daughter tells him she understands that he cannot play with her; (

c) the strain his injuries have caused in his family; (

d) the burden it places on his spouse, both having to help him and having to take on roles he cannot; (

e) his fear that his reaction to his injuries will mess up his children; (

f) how close he came to never seeing his daughter grow up, meet a partner, get married; (

g) the loss of his future career as a border services dog handler, something that he knows is no longer in reach; (

h) recent incidences of worsening vertigo that could cause him to lose his career entirely. He cannot hold his children, "I feel like my

world is spinning and it won't stop." (i) "You didn't need to use, you did. You didn't need to get in a car, you did. You didn't need to be the speed you were, you did. Your shitty decisions led to me being messed up the rest of my life." 14 . The pre-sentence report shows that Mr. Colquhoun also suffers from PTSD and episodic depression, unsurprisingly. His return to work, only a few months ago, has had to be on accommodated duties due to his limitations. The collision has also caused a loss of income for him. 15 . Mr. Febbo was also hospitalized, in his case for about five weeks.

His injuries included a broken collarbone, two broken ribs, a ruptured disk in his back and serious injury to his heel, with some future surgery likely required, but delayed by Covid. The law is clear that Mr. Febbo's own injuries, although a collateral consideration, are not a mitigating factor on sentence: R. v. Suter, 2018 SCC 34 , at paragraph 49 . [5] 16 . As I have mentioned, Mr. Febbo has no criminal record and he is now edging close to his forty-ninth birthday.

He does, however, have a driving record of some substance, which includes fifteen speeding convictions in the twenty-five years leading up to the collisions here--or about one speeding conviction on average every eighteen months over the past twenty-five years--along with six more non- moving violations. While the speeding offences are mostly not that remarkable, what is remarkable is their number, which suggests a lack of awareness or concern on Mr.

Febbo’s part about the need for prudence in driving, which is a highly regulated privilege and not a right and that, even when sober, can create significant risks for others. 17 . Mr. Febbo's pre-sentence report speaks of him having had an absent and seemingly irresponsible father, who was out of the family by the time Mr. Febbo was three years old. Mr. Febbo has a resilient relationship with his mother and a positive but not particularly close relationship with his brother. Mr. Febbo has an eighteen-year-old daughter and a fifteen-year-old son from a relationship that lasted for about ten years, ending in 2017.

He sees his kids on weekends. The pre-sentence report demonstrates that up until Covid-19 shut down his place of employment, Mr. Febbo had a strong history of employment. 18 . Mr. Febbo advised that he does not consume alcohol, but he does have a history of misuse of controlled substances including prescribed pain medication, cocaine and fentanyl. His introduction to prescription opioids dates back about a decade when he was experiencing back pain.

He has been taking fentanyl since about 2012 or so, "because his drug dealer could not find prescription pain medication." He said he only used drugs for pain control and did not need them every day. His mother was entirely unaware of his drug use according to the pre-sentence report, although her support letter suggests otherwise. 19 . Mr. Febbo began attending an opiate treatment clinic in 2018 but has not consistently refrained from drug use even while on the methadone programme. He has been on a stable methadone dose for a long time.

Both the pre-sentence report and the supplementary records filed show that his urine screens have been clear of illicit substances since mid-December, 2022, although I note that that achievement only begins three months ago, a couple of months after he entered his guilty plea and more than two-and-a-half years after the offences. The pre-sentence report and supplementary records show a substantial involvement with addiction support services, but again show that engagement only began about a year-and-a-half after the offences and got off to a slow start, although it has improved over roughly the past year. Mr.

Febbo deserves credit for this engagement. He has also engaged with CMHA briefly and with other community supports. There are no specific identified mental health issues, though. 20 . The pre-sentence report includes a portion in which it appears that Mr. Febbo is resiling from the admission of guilt inherent in his plea, but on the date set for sentencing submissions it was made clear that he was not resiling and accepted his responsibility. However, the fact that Mr.

Febbo, about two-and-a-half years after the offences was equivocating about whether or not he had been spiked with drugs when he spoke with his probation officer is somewhat concerning. 21 . I have the benefit of a supplementary book of documents provided by Mr. Febbo's counsel. These consist of letters from service providers such as Community Addiction Services of Niagara, Quest, the Canadian Mental Health Association and his methadone clinic. There are also various letters of reference from family and friends, as well as a letter from a flooring contractor, dated February, 2022, speaking favourably about Mr.

Febbo's work ethic, although it does refer to his need for transportation to work sites. 22 . The letters of reference are all positive. It is clear that although Mr. Febbo, as described in the pre-sentence report, maintains a fairly narrow circle, he does have support in the community. The letters speak to Mr. Febbo's engagement with his children, his selflessness and positivity, his work ethic and, repeatedly, that the offences strike the authors of the letters as completely out of character.

As I noted near the outset of these reasons, tragically that is almost always the case when dealing with sentencing for offences of this nature.

23. The positions of the Crown and defence in relation to the appropriate sentence for Mr. Febbo could hardly be further apart. On Mr.Febbo's part, Ms. Burton argues that the appropriate sentence is in the reformatory range and that Mr. Febbo should not serve anysentence in real jail, but rather as a conditional sentence of "house arrest" in the community. Assuming that the appropriate sentence isunder two years and assuming that the criteria for conditional sentences are satisfied, that would be an available sentencing option underrecent changes to the Criminal Code. Ms.

Burton advocates in favour of a three-year driving prohibition, noting that Mr. Febbo has notbeen driving for over two years, since the charges were laid in late, 2020. 24. Mr. Sokolski, for the Crown, however, says that a penitentiary sentence is required here, something in the range of three to fouryears in total, along with a five-year driving prohibition. 25. Both Ms. Burton and Mr. Sokolski have provided me with many cases on sentencing ranges for offences like this. Insofar as many ofthose cases in turn advert to many other cases, there are literally dozens of cases before me.

I do not propose to refer to all of them, oreven to the bulk of them, in these reasons, but the review of each of them, with their divergent facts, backgrounds, severity and so ondoes provide a very useful scan of the range of sentence. 26. In general terms, I shall make the following observations: (

a) The older the sentencing decisions are, the less likely they are to be helpful, although this is not universally true. I have found value,for example, in the decision of M.G. Quigley J in R. v. Thompson, 2011 ONSC 624. If nothing else, the older cases show howintractable the problem of impaired drivers is. Whatever progress has been made in relation to the carnage that impaired driving haswrought in Canada, year in and year out, we are now clearly in a phase where the sentencing ranges are, at least putatively, rising as aresult of judicial concern.

Appellate approval of this rise in sentences for serious impaired driving offences can be seen at least as earlyas 2010: R. v. Junkert, 2010 ONCA 549. While it is a clear principle of Canadian sentencing law that jail is to be used only whennecessary and even then only to the extent necessary, the reality of impaired driving causing bodily harm or death is that generaldeterrence and denunciation must be the driving factors. (

b) Most of the cases to which I have been referred, including various cases in the Court of Appeal relate to offences that pre-dateParliament's most recent increase in the maximum sentence for impaired driving causing bodily harm. Mr. Febbo's offences post-datethat change. The maximum sentence for impaired driving causing bodily harm is now fourteen years. This is a message fromParliament. What Fuerst J. said in R. v. Muzzo, 2016 ONSC 2068 (para. 69), a case involving impaired driving causing deathwhere the maximum sentences had been increased, applies equally to bodily harm offences committed after Parliament increased themaximum sentence for Mr. Febbo's offence. (

c) While it goes without saying that the imposition of sentence on a specific offender is the result of a complex blend of considerations,the outcomes of many of the cases put before me are perplexing insofar as those sentences seem to bear no satisfactory relationship to theextent of the victim's injuries. The seriousness of the offence is one of the two branches of the proportionality analysis in sentencing andproportionality is the cardinal principle of sentencing.

In cases of impaired driving causing bodily harm, the consequences for the victimor victims must necessarily rank very high in measuring seriousness; indeed the whole field of impaired-driving law is massivelyconsequence-driven. While no sentence a court imposes can make a victim whole, especially considering the serious and long-lastinginjuries these offences cause, any sentence that inadvertently or consciously diminishes or fails to reflect the consequences for the victimis not deserving of credence and over the long term undermines the courts’ credibility.

In reviewing many of the decisions put beforeme, I was left with overall significant discomfort with many of the sentences imposed, notwithstanding the frequent talk about sentencesneeding to increase. It seems that we write about “carnage”, but we sentence for “mischief”. It seems to me that for the courts’ bite tomatch their bark, for general deterrence to have a meaningful impact on our target population of generally pro-social offenders puttingtheir neighbours at risk of death or serious harm, then bodily harm sentences generally substantially higher than those imposed need tobecome the norm.

Sentences for non-trivial impaired driving bodily harm in the range of six, nine, twelve or fifteen months strike me asbeing almost certainly not fit for purpose in the vast majority of cases and reflect a disconnect between the courts’ utterances and itsactions. Sentences above that range and into the penitentiary range could far more often be justified, particularly as the range of sentencefor impaired driving causing death rises and in light of Parliament’s increase in the maximum sentence for impaired driving causingbodily harm.

If I look at the sentences imposed for various aggravated assaults relative to the sentences imposed for similar, or worse,injuries in driving cases, there is a mismatch between the damage done and the consequence imposed even when one is consideringsimilar offenders. (

d) There was a disagreement between Ms. Burton and Mr. Sokolski as to whether I should treat these two offences as separate or asbeing all part of the same transaction. Ms. Burton says they are so closely linked in time, about two minutes apart, that they should betreated as one offence and that the sentences should be concurrent. Mr. Sokolski says that they are separate offences. I agree with Mr.Sokolski. Mr. Febbo made at least two separate extremely bad decisions that night (three when one considers his speed on a residential,urban road when he crashed into Mr.

Colquhoun, four when one considers the decision to pass in the first place on a straight, clear roadwith oncoming traffic). The first was his decision to drive at all. However, notwithstanding that potentially fatal error of judgment, fategave Mr. Febbo a warning shot across the bow when he hit the Corolla, effectively giving him a special warning that should have madeit clear beyond any doubt at all that he should not be driving. Rather than responding appropriately to that notice, at a point whennothing but property damage had been done, Mr. Febbo fled and ultimately did so in a hugely dangerous way.

If he had respondedappropriately to the first collision, there would not have been a second collision and Mr. Colquhoun would not even know who Mr.Febbo is, never mind having had his life upended by him. Subject to the principle of totality, the sentences for the two offences heremust be consecutive.[6]

27. In R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J. No 64, a case involving impaired driving causing death rather than bodilyharm, the Supreme Court had the following to say: [3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. Asentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system inlight of its objectives. [4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate. [5] In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courtsfrom various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to conveysociety’s condemnation: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 129; R. v. Lépine, 2007 QCCA 70, atpara. 21 ; R. v.

Brutus, 2009 QCCA 1382, at para. 18 ; R. v. Stimson, 2011 ABCA 59, 499 A.R. 185, at para. 21; R. v.McIlwrick, 2008 ABQB 724, 461 A.R. 16, at para. 69; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at paras. 46-47; R. v.Ruizfuentes, 2010 MBCA 90, 258 Man.

R. (2d) 220, at para. 36. [6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in allcases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other thanimprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society. [7] The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences tobe punished more harshly.

Despite countless awareness campaigns conducted over the years, impaired driving offences still cause moredeaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, EndingAlcohol-Impaired Driving: A Common Approach (2009), at p. 5. [8] This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 16) 28. In R. v. Gill, 2017 ONSC 723, M.G.

Quigley J of the Superior Court made the following comments about the precise nature of thisoffence: [28] In a case such as this, however, as drinking and driving offences continue to wreak enormous life-altering carnage on thehighways and municipal byways of Canada, denunciation and general deterrence to others must continue to be paramount in decidingwhat sentence to impose, as is specific deterrence of the particular offender whose conduct of driving a vehicle while impaired mustreceive the strongest message of community denunciation.

The sentence must convey our society’s condemnation of the conduct of theparticular offender. But at its core, it is the message of general deterrence to others that must be so strongly communicated, because asFuerst J. notes so aptly in Muzzo, unlike so many other kinds of crime, more often than not it is otherwise law-abiding citizens whocommit these offences. People who would never break the law still think it is acceptable to get behind the wheel of a car when they havebeen drinking.

So the message to those otherwise good citizens must convey a strong message of deterrence that if unheeded will resultin substantial penalties of incarceration being imposed. [29] Frankly, it is plain that the public is not getting the message. Notwithstanding increasing sentences that have been imposed inrecent years, individuals continue to feel at liberty to get into their vehicles, potential killing machines, and drive those vehicles whilethey are impaired by alcohol. This is not an offence that results from happenstance circumstances.

It is not an offence of passion or onecaused by being in the wrong place at the wrong time.

It is an offence that results from a specific conscious decision by the offender as aperson who has been given the privilege of a licence to drive a motor vehicle, to get into his or her car and put the keys into the ignitionwhen they cannot help but know that they are impaired, unless they are so impaired that they are virtually comatose. [30] It is a conscious decision that puts numerous people’s lives at risk, not to mention ruining the lives of those who may be injuredor damaged or killed as a result of the actions of the impaired driver. It requires the strongest judicial condemnation.

Sentences mustreflect the public’s total despair and outrage over the continuing proliferation of drinking and driving offences in this country and the lossof life and damage that they occasion. 29. With respect to the question of the appropriate sentence, what can be said in Mr. Febbo’s favour is that he is a first offender who haspleaded guilty and saved Mr. Colquhoun the stress of testifying, potentially testifying twice if he had chosen a trial in the Superior Courtof Justice. Mr.

Febbo comes across as a pro-social person (like most offenders for these offences), with a generally good past history anddecent prospects for rehabilitation including good social supports in his family and his friend group. He appears, albeit a bit late in theday, to be addressing his substance abuse issues in a meaningful way. I accept that he is genuinely remorseful, feels terrible about whathe has done and its impact on Mr. Colquhoun and has suffered injuries of his own. 30. Mr. Febbo’s offences, however, reflect a very high degree of moral responsibility. He committed two serious offences within

minutes. Had he stopped when he struck the Corolla, he would almost certainly have been deserving of a moderate conditional sentence,but he did not. He fled, despite having had concrete and jarring proof of his unsuitability to drive. His driving on Bunting Road wasegregiously bad—a speed in excess of motorway speed limits on a two-lane 50 km/h road in a residential neighbourhood, passing on aclear, straight road in the face of oncoming traffic.[7] His impact on Mr. Colquhoun’s and his family’s quality of life borders on thecatastrophic and, as a young man with a young family, Mr.

Colquhoun has decades to travel with that enormous burden. Nothing I cando can remedy that, but what I must not do is diminish its seriousness. 31. I have concluded that a sentence above the reformatory range is called for in this case. That necessarily means that a conditionalsentence is not an option. However, even if I had concluded that a reformatory sentence was appropriate and notwithstanding thetremendous power that conditional sentences can have as a sentencing option in appropriate cases and the favourable things that can besaid about Mr.

Febbo, I would still not have found this to be an appropriate case for a conditional sentence. Mr. Febbo’s level of moralresponsibility here ranks high, egregiously so in relation to the second offence after the collision with the Toyota gave him inescapablewarning of the danger he posed and the manner and speed and consequences of his driving place the seriousness of the offence veryhigh. I cannot conclude that the requirements of s. 742.1(

a) of the Criminal Code are made out. In reaching that conclusion, I amreassured by the views of a remarkably potent panel of the Court of Appeal in R. v. Biancofiore, (ON CA), [1997] O.J.No. 3865. 32. While a sentencing court must always keep its eye on all of the objectives of sentencing, including rehabilitation, certain classes ofoffence will draw more on one objective than on the others. These offences lean more heavily towards the denunciation and deterrenceside of the ledger than other offences: see R. v. Junkert, 2010 ONCA 549 at paragraph 42. I have concluded that the appropriatesentences for Mr. Febbo’s crimes are as follows: (

a) On the charge of impaired driving causing bodily harm, there will be a sentence of thirty months in the penitentiary. (

b) On the charge of failing to remain at the scene of a collision, there will be a sentence of three months’ imprisonment, to be servedconsecutively, leading to a total sentence of thirty-three months’ imprisonment. (

c) There will be an order under s. 742.31 of the Criminal Code prohibiting Mr. Febbo from communicating with Mr. Colquhoun whilehe serves his sentence. (

d) Mr. Febbo shall provide a sample of his DNA for inclusion in the DNA data bank on both offences, which are each secondarydesignated offences. He is a first offender, but the nature of the offences means the balancing test is inescapably resolved in favour ofthe Crown. (

e) Mr. Febbo has not been driving since his arrest, a period of approximately two years. There will be a prohibition order for threeyears in addition to the time Mr. Febbo serves in custody. (

f) Mr. Febbo shall pay the victim surcharge of $400 not later than 30 March, 2028. Released: 14 April, 2023