R. v. Bannister, 2022 ONCJ 215

ONTARIO COURT OF JUSTICE CITATION: R. v. Bannister , 2022 ONCJ 215 DATE: May 5, 2022 COURT FILE No.: K22-09 BETWEEN: HER MAJESTY THE QUEEN — AND — WILLIAM BANNISTER Before Justice G. Orsini Reasons for Sentence released on May 5, 2022 M. Gardiner.......................................................................................... counsel for the Crown B. Sheppard………………………………counsel for the defendant William Bannister Orsini J.: Introduction 1 . William Bannister is before the Court for sentencing on one count of Careless Driving which resulted in the death of 7-year-old Aleyia Hellowell-Hall .

Circumstances of the Offence 2 . The circumstances of the offence were outlined in an Agreed Statement of Facts filed in support of Mr. Bannister’s guilty plea on January 22, 2022. 3 . Shortly after 4 pm on Monday July 30th, 2018, Meghan Hellowell was driving her 2007 Nissan Sentra northbound on Nairn Road approaching McEwen Drive in the County of Middlesex. Her 7-year-old daughter, Aleyia, was seated in a booster seat in the rear passenger seat. 4 . At the same time, William Bannister was driving his son’s 2004 Chevrolet Silverado southbound on Nairn Road, approaching McEwen Drive from the north.

Also in his vehicle were his two granddaughters aged 12 and 9, his 8-year-old grandson and his 32-year- old daughter in law. 5 . Nairn Road is a paved asphalt roadway in both directions with a posted 90 km/h speed limit. Both the condition of the roadway and visibility were good.

6 . As both vehicles approached McEwen Drive, the Bannister vehicle suddenly and without warning turned left, directly into the path of the Hellowell vehicle which had the right of way. The Hellowell vehicle, which was travelling at approximately 98 kms/hr., collided with the passenger side off the Bannister vehicle. Ms. Hellowell had insufficient time to react and avoid the collision. 7 . Ms. Hellowell was briefly knocked unconscious. When she regained consciousness, she was bleeding profusely from the face and unable to get out of her vehicle. 8 .

She suffered a displaced nasal fracture, facial lacerations and multiple contusions on her abdominal wall, chest, right hand, a pulmonary hemorrhage/contusion and tenderness to her cervical spine. 9 . Paramedics arrived on scene and rushed Aleyia to Strathroy General Hospital where she was ultimately pronounced dead at 5:49pm due to the catastrophic injuries she sustained. 10 . Police also arrived on scene and spoke to Mr. Bannister who was noted to be coherent and co-operative. He acknowledged being the driver of the Silverado and was taken to the hospital due to minor injuries he sustained.

The other occupants of the Bannister vehicle also received minor injuries. 11 . Although a beer can with a small amount of beer in the bottom was in the center console of his vehicle, Mr. Bannister denied consuming any alcohol and the officer specifically noted an absence of any odor of alcohol coming from Mr. Bannister. In addition, although his blood was not tested, there was no note of any indicia of impairment in Mr. Bannister’s hospital records. 12 . The Collision Reconstruction Report attached to the Agreed Statement of Facts showed that the brakes on Mr.

Bannister’s vehicle were activated 8 seconds prior to impact, consistent with the vehicle gradually slowing down as it approached McEwen Drive. It also showed that Ms. Hellowell’s vehicle would have been in the line of sight and visible to Mr. Bannister for at least 9 seconds prior to the collision. Victim Impac t 13 . The impact of the offence cannot be overstated. While the loss of any life is tragic, losing the life of a 7-year-old child who brought so much joy to the lives of so many is particularly heart breaking.

The numerous Victim Impact Statements written by family and friends, many of whom read them to the court, disclose a pain far beyond the words contained therein. 14 . Aleyia was clearly at the heart of a tight knit, loving family. As indicated by her mother, the love which Aleyia brought to her family reflected the love that they surrounded her with. The Court was particularly impressed with the sentiment that Aleyia’s selflessness was such that if she could speak, she would tell her mother to forgive Mr. Bannister.

As difficult as this may be for those left behind in the wake of such tragedy, it is perhaps recognition that the heart of a 7-year-old child often knows no bounds – that the world could use more Aleyia’s and that we have lost someone special. Circumstances of the Offender 15 . Mr. Bannister, now 81 years of age, was 77 years old at the time on the offence. He has a minor driving record consisting of a speeding infraction in 2010 and a Failing to Display Lights in 2003. Neither he nor any member of his immediate family have ever had a criminal record. 16 . As indicated in a Pre-Sentence Report, Mr.

Bannister was the eldest of 6 children. He left school before completing grade 9 to assist his parents on the family farm where he grew up. He married at the age of 23. He and his wife his wife of 58 years raised three sons while operating their own family farm for 51 years. They now have 11 grandchildren. By all accounts, Mr. Bannister maintains an active role in their lives. 17 . They moved off the family farm 8 years ago and now live in a condominium in the Village of Alisa Craig, approximately 40 kms northwest of London, Ontario. 18 . Unfortunately for Mr.

Bannister, in addition to losing all but one of his own sibbing’s within a short period of time leading up to the

offence, he also lost his own son just a few months thereafter. 19 . Numerous reference letters attest to Mr. Bannister’s character as an honest, responsible, hard-working and devoted family man. He continues to enjoy a close relationship with his own children and their spouses. This includes his daughter-in-law by marriage to his now deceased son. She described her father-in-law as a compassionate soul whose kind and caring support was made available to her following the death of her husband. 20 . The Pre-Sentence Report noted the deep sorrow Mr.

Bannister expressed at the loss of Aleyia and the anxiety this has caused him. He was apparently unaware that anyone in the other vehicle had sustained serious injury until he was advised of Aleyia’s death after waiting several hours at the hospital for treatment himself, and only after remarking to the treating physician how fortunate they all were that no one was hurt. 21 . Members of the Bannister family also indicate that Mr.

Bannister is completely grief stricken at the loss of a young child and is acutely aware his actions could just as easily have resulted in the death of his own grandchildren and granddaughter who were traveling with him that day. This was confirmed by Mr. Bannister in his own letter addressed to Aleyia’s family. 22 . He continues to experience sleeplessness and anxiety. He has had some counselling to address these issues as well as the loss of his son and other members of his immediate family.

However, as with many males of his generation, he is described as a proud man who has difficulty expressing emotions or seeking help. At the urging of family members, he is seeking further counselling to address these issues. 23 . There does not appear to be any explanation for the accident beyond carelessness due to inattention. Mr. Bannister had just picked up his daughter-in-law from work and was driving her back to her home together with his grandchildren whom he had spent the day with. This was apparently not an uncommon occurrence.

Indeed, family members described him as a cautious driver whom they trusted to drive the youngest members of their family to places without other adult supervision. Position of the Parties 24 . The Crown seeks the maximum allowable sentence of 6 months jail followed by two years of probation. 25 . Counsel for Mr. Bannister submits that a more appropriate sentence in these circumstances would be the maximum fine of $2,000.00 and the maximum probationary term of 2 yrs. 26 . Both counsel agree that the maximum 2 year driving suspension should be imposed. The Applicable Legal Principles 27 .

I have considered the principles of sentencing set out in our Criminal Code including the requirement that any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender; 28 . At the time of the offence,

section 130 of the Highway Traffic Act provided as follows: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her license or permit may be suspended for a period of not more than two years. 2009, c. 5, s. 41 . 29 . While proof of the offence requires that the driving be measured using an objective standard without appeal to the consequences,

those consequences become an important factor in assessing gravity of the offence and the moral blameworthiness of the offender for sentencing purposes. In this regard, our courts have long recognised that death resulting from careless driving is an important factor to consider. 30 . As the Crown correctly points out, shortly after the offence in this case, the Highway Traffic Act was amended to provide for significantly higher penalties for careless driving where death or bodily harm is caused.

While I am bound by the sentencing provisions that existed at the time of the offence, this is some recognition of the need to send a stronger message in such cases. 31 . Although each situation is unique, I also remind myself of the need to consider similar sentences imposed on similar offenders for similar offences committed in similar circumstances. 32 . Finally, I must consider all reasonably available sanctions short of imprisonment that are consistent with the harm done to victims and the community. Analysis 33 .

I have been provided with several cases with respect to the range of sentences and the factors to be considered in cases of careless driving where death has resulted. Suffice it to say they demonstrate a wide range of options and include the sentences being suggested by both Crown and defence. 34 . In R v. Martinez [i] , the forty-one-year-old offender with no prior criminal or driving record failed to stop for a stop sign and struck a vehicle that had the right of way, killing the driver. Having served 20 days of a 90-day sentence, the Court of Appeal reduced the sentence to one of time served.

The court found that the offence was at the lower end of the range in terms of moral blameworthiness. 35 . In R v Messercola [ii] , a 48-year-old offender with no prior criminal or driving record was sentenced to a $1,000 fine and 18 months’ probation, for carelessly making a left hand turn at a busy intersection resulting in the death of two pedestrians who were crossing in a marked crosswalk. 36 . I n R v.

Pellerin [iii] , a twenty-five-year-old offender with a significant driving record struck and killed a cyclist and was sentenced after trial to the maximum fine of $1000, the maximum license suspension of twenty-four months, and a period of probation for twenty- four months. The accident involved a brief period of inattention when Mr. Pellerin was following the vehicle in front of him too closely. 37 . In R v. Stupor [iv] , the 50-year-old offender with no criminal record and one prior conviction for speeding was sentenced to a $2,000 fine, a 2-year driving prohibition and probation for 2 years. Mr.

Stupor was driving in a residential area where children would be expected to be when he failed to stop at a marked crosswalk and proceeded against the red light resulting in the death of a six-year-old child who was crossing in the marked crosswalk in accordance with the cross signal. 38 .

In reviewing the relevant case law, Justice LeDressay found that non-custodial dispositions are within the range of sentences imposed for careless driving matters involving a fatality, stating as follows: The totality of the case law, as I read it, indicates that a short period of incarceration is often imposed upon an offender who has been found guilty of a Careless Driving charge where a fatality is involved.

However, the case law would also indicate that a period of institutional incarceration in those types of cases is not necessarily a required disposition and that significant non-custodial dispositions are also within the acceptable range depending on the totality of the circumstances presented to a court in each individual case. [v] 39 . In R v. Defreitas [vi] , the 31-year-old offender was sentenced to a $1,000.00 fine, probation for a period of 18 months and an 18- month driving suspension. Mr. Defreitas was speeding through a busy intersection when he lost control of his vehicle.

The ensuing collision resulted in the death of one of his passengers. He had no prior criminal or driving record and had spent 11 days in pre-trial custody. 40 . The aggravating factors present in this case include the following:

(

a) the gravity of the offence as evidenced by its impact as indicated above; (

b) Mr. Bannister’s moral culpability for the offence based on the degree of carelessness. Based on the Accident Reconstruction Report, Mr. Bannister had the opportunity to see the Hellowell vehicle for 9 seconds prior to impact. He most certainly had this opportunity throughout the 8 seconds that he was applying the vehicle’s brakes prior to making the turn. In short, this was not a last second decision to perform a turn involving a momentary lack of attention. It is apparent that he simply didn’t see the Hellowell vehicle at any point during that time.

I agree with the Crown that this demonstrates a significant degree of carelessness. It is objectively foreseeable that serious bodily harm and/or death could result when making a turn across a lane of traffic without due care and attention to oncoming vehicles. This is particularly so where the turn is made across a posted 90km/hr lane of traffic. One would have thought that the need to exercise due care and attention in such circumstances would have been heightened by the fact that Mr. Bannister had 3 of his own young grandchildren traveling with him.

The lack of due care and attention in these circumstances is significant and speaks to a heightened degree of moral culpability. At the same time, I must consider that Careless Driving, unlike the offence of Dangerous Driving with which Mr. Bannister was originally charged, is a regulatory offence. By accepting his plea, I accept that his driving did not constitute a marked departure from the norm. There was nothing intentional or deliberate about Mr. Bannister’s actions. Simply put, the moral blameworthiness for Carless Driving is less than that associated with Dangerous Driving. (

c) Prior Driving Convictions Although this is a factor, the two prior driving convictions are dated and not significant, particularly given the number of years I expect he would have been driving. It does not include any prior offences involving Careless Driving. 41 . I am not satisfied that the Crown has made out the other aggravating factors referred to in submissions. 42 . Although a can of beer with a small amount of alcohol was in the center console of the vehicle being operated by Mr. Bannister, there is no evidence linking this to Mr. Bannister or his carelessness.

The pick-up truck he was driving belonged to his son. No odour of alcohol was detected on his breath. There was a total absence of any other evidence regarding the consumption of, or impairment by, alcohol. 43 . In addition, I am not satisfied that the absence of any meaningful effort on the part of Mr. Bannister to assist the occupants of the Hellowell vehicle demonstrated a lack of remorse amounting to an aggravating factor. Mr. Bannister had three young grandchildren in his own vehicle. He would have been aware that others who had witnessed the accident were already attending to the other vehicle.

There is no evidence that he was even aware that a young child was in the rear of the other vehicle. 44 . I have also considered the following mitigating factors: (

a) Mr. Bannister plead guilty. In the circumstances, I accept his plea as a sign of remorse. Although it comes almost three and a half years after the accident, I accept that his trial on the Criminal Code charges was delayed by both the Covid-19 pandemic and the illness of his former counsel, who passed away only a short time ago. Ultimately the Crown offered to resolve the matter only days before the scheduled trial date. At no time did Mr. Bannister deny he was the driver of the vehicle or put forward any explanation short of the offence for which he is now before the court.

I note that many of the victims expressed outrage at the fact that Mr. Bannister never reached out to them to say he was sorry for what he had done. On its face, they may have been unaware that he was prohibited from contacting them by virtue of his conditions of bail. As the PSR confirms, Mr. Bannister has been impacted by the fact that his actions caused the loss of a child’s life. His remorse, I find, is genuine. Specific deterrence in not a factor. (

b) Character and Personal Circumstances Mr. Bannister is 81 years of age. He comes before the court with no prior criminal record and a minor driving record. His PSR is very positive. Together with the letters of reference provide by his counsel, it paints a picture of an otherwise hard working and responsible family man who has lived an otherwise exemplary life. In my view, he is far from being a worst offender. 45 . The only issue left to address is whether denunciation and general deterrence require a period of incarceration. In my view, given all the factors outlined above, they do not. 46 .

Our law requires that all other reasonably available sentences be considered before imposing incarceration. In this regard, it is worth noting that unlike a conviction for a criminal offence, a jail sentence for a Highway Traffic Act offence cannot be served in the community under terms outlined in a Conditional Sentence Order. If such a sentence were available to Mr. Bannister, it is hard to imagine how he would not be deemed a suitable candidate. 47 . At the same time, punitive sanctions involving a restriction on liberty can be achieved through a Probation Order. That is what I intend to do in this case.

Conclusion 48 . Mr. Bannister will be sentenced to the maximum fine of $2,000.00, the maximum term of Probation of 2 years and the maximum driving suspension of 2 years. 49 . With respect to the terms of Probation, in addition to the statutory terms, he will report to a Probation Officer within 2 working days and thereafter at all times and places as directed by them. He will not have any contact or communication directly or indirectly with any member of the Hellowell-Hall family. He will not operate or have care and control of a motor vehicle.

For the first 6 months of his Probation Order, he will remain in his residence or on the property of his residence at all times except with the following exceptions: (

a) for any counseling or treatment as approved by his Probation Officer in writing in advance; (

b) for any medical emergencies involving himself or any member of his immediate family; (

c) once per week for the necessities of life between noon and 4pm on Saturdays; (

d) for attendance at religious services, a

schedule of which will be provided to his probation officer in advance; (

e) for any other reason approved of in writing by his Probation Officer. Released: May 5, 2022

“ORSINI J.” Signed: Justice G. Orsini [i] R v. Martinez [1996] O.J. No. 544 (CA) [ii] R v. Messercola 2005 ONCJ 6 [iii] R v. Pellerin 2006 ONCJ 503 [iv] R v. Stupor 2015 ONCJ 350 [v] Supra , at para. 48 [vi] R v. DeFreitas 2020 OJ No. 706