R. v. Kreyger, 2020 ONCJ 424

ONTARIO COURT OF JUSTICE CITATION: R. v.

Kreyger , 2020 ONCJ 424 DATE: 2020·09·21 COURT FILE No.: Stratford 19-19224 BETWEEN: R. — AND — Melissa KREYGER Before Justice of the Peace M A Cuthbertson Heard on 23 February 2020 Reasons for Sentencing released on 21 September 2020 Wilson, E........................................................................................... counsel for the prosecution Van Drunen, K...................................................................................... counsel for the defendant JUSTICE OF THE PEACE CUTHBERTSON: 1) Background [ 1 ] Perhaps some of the best days of our lives are those when absolutely nothing out of the ordinary happens.

Most of us don’t notice or appreciate those types of days but perhaps we should. For at the end of those days, we come home from our day’s activities and revel in the simple joy of being with our families, our loved ones and our friends. Imagine for a moment what it would mean, if at the end of your day, the joy of being with a person you cherish is denied to you. Imagine not being able to see, hold or chat with that person ever again. Imagine if that person was your spouse, father, son or loved one.

How would your life change, if your day ended, with the loss of such a person in your life? [ 2 ] On 16 May 2019, Anne Marie Satchell, her children and all those who loved her husband Jason had to begin to try to address that question. For on that day, Jason Satchell tragically died in a traffic collision on Line 42 at Road 122 in Perth East Township. [ 3 ] The early morning sun already shone brightly at 6:45 AM. The night air had given way to a warmer 9 degrees Celsius.

At the intersection, the two roadways were asphalt, dry, straight and level. [ 4 ] Ms Melissa Kreyger was approaching a stop sign on Road 122 at Line 42 at approximately 60 kilometres per hour. She knew the intersection well as it was near where she resides and it was on her regular route to work. Her obligation was to stop her motor vehicle at the stop sign. Ms Kreyger did not brake nor stop. [ 5 ] Mr Satchell had the right of way on Line 42.

It was later learned from the module in his motor vehicle that he was not wearing his seatbelt and was travelling at approximately 100 kilometres per hour in a posted 80 kilometre per hour zone. [ 6 ] Ms Kreyger’s vehicle struck Mr Satchell’s vehicle. His vehicle left the roadway and struck a hydro pole, splitting it in half, and ended up in the ditch. Her vehicle also left the roadway and ended up in the ditch. As noted above, Mr Satchell did not survive the collision. Ms Kreyger suffered injuries to her right ankle and left wrist.

[ 7 ] On 24 February 2020, Ms Kreyger pled guilty before me on a charge of Careless Driving causing Death under s. 130(3) of the Highway Traffic Act. This is a relatively new

section under the Act. 2) Victim Impact Statements [ 8 ] Victim Impact Statements were tendered as exhibits by Anne Marie Satchell, Jason’s wife; Murray and Marion Satchell, Jason’s parents; Shelley Preiss, sister to Jason; Dana Satchell, sister-in-law to Jason; Jeremy Satchell, Jason’s brother and Jody Satchell, another brother to Jason. Some of these were read into the record. The pain of the loss of Jason to those who loved him is palpable. Due to the Covid-19 pandemic, it has been more than six months since I first heard this matter.

Even now, when I reread the victim impact statements, my heart breaks over the senseless loss of such a wonderful person as Jason Satchell. Jason’s family and the community have my deepest condolences for their loss. 3) Sentencing Submissions [ 9 ] As I now consider sentencing in this matter, I want the loved ones of Jason Satchell and the community at large to understand that the sentence I will impose cannot in any way be considered to be the measure of the man who was Jason Satchell.

There is nothing that sentencing will achieve that can truly compensate for the loss of such a person to all those so deeply impacted by his death. Rather sentencing is the application of the law set out is s. 130 (3) of the Highway Traffic Act to the circumstances of the facts in this matter and of Ms Kreyger. I will now discuss those circumstances. 3.1) Aggravating Circumstances [ 10 ] The death of Jason Satchell was caused by the inattention of Ms Kreyger towards a stop sign which she fully knew was there. I note that there were no visual obstructions which prevented the defendant from seeing the stop sign.

The weather was clear and the roadway was paved. She did not brake. All of these circumstances are deeply troubling. 3.2) Mitigating Circumstances [ 11 ] Ms Kreyger is a 54 year old wife, mother and long time member of the local community. She is well educated and has been gainfully employed for many years. She has contributed to the betterment of the community by volunteering with many local organizations. [ 12 ] To her credit, the defendant very early in the court processes chose to take responsibility for her actions by pleading guilty on the 24 th of February.

This is a sign of remorse. [ 13 ] I note that Ms Kreyger has already completed 100 hours of community service as a further sign of her remorse. For clarity, my sentence will be in addition to those hours. [ 14 ] Verbally, Ms Kreyger expressed her deep sorrow and regret to the Satchell family for causing the accident which took Jason’s life. Her expressions of remorse were heartfelt, in my view. She expressed the hope that someday she might be forgiven by the family for her mistake.

She also touched on her own challenge to come to grips with the pain she has caused others and her hope to find some level of self-forgiveness. [ 15 ] Dr Anne Martin, in a letter dated 31 Dec 2019 to the court, wrote of Melissa Kreyger’s slow progress in healing from her physical injuries from the collision. What may take much longer to heal are the impacts to her mental health. According to Dr Martin, Melissa suffers from symptoms of post-traumatic stress disorder, including nightmares, anxiety and disabling flashbacks. In the Doctor’s opinion, Ms Kreyger has deep feelings of guilt.

She also “is preoccupied with thoughts and worries about (Mr Satchell’

s) family and the loss that they have suffered”. Dr Martin further stated that it will be months to years before Melissa recovers from the accident. Clearly, Ms Kreyger is also suffering from the events of that tragic day. [ 16 ] In submissions from her counsel, I was advised that Ms Kreyger is of Indigenous heritage. I was saddened to hear that following the collision Ms Kreyger was the subject of racist comments from some in the community. I fail to be able to make any logical connection between Ms Kreyger’s heritage and her actions on 16 May 2019.

Indigenous persons have a right to be proud of their roots not to be shamed for them. Such misplaced racist comments are yet another example of the systemic racism which still lingers in Canada. Counsel jointly agreed that a Gladue report should be prepared and be considered as part of the sentencing considerations. Such considerations are a requirement in our law to help address the sad historic treatment of the Indigenous peoples in our nation.

A treatment that has been widely recognized in law to result, in part, in an over representation of Indigenous persons in the criminal justice system and in the population of incarcerated persons in Canada. [ 17 ] Ms Sharon Archer, a Gladue Caseworker, for Aboriginal Legal Services in Toronto prepared a Gladue letter dated 17 June 2020 for counsel and myself. A Gladue letter is prepared rather than a Gladue report when the Crown is seeking less than a 90 jail sentence, as was the case in this matter. I am grateful for Ms Archer’s work and her recommendations.

I am directing that this Gladue letter be made an exhibit in these proceedings, if it has not already been so noted. [ 18 ] Reading the Gladue letter is a sobering experience. It articulates the tragic historic treatment of Canada’s Indigenous peoples, which I referenced above. It also sets out recent efforts by the government of Canada to begin to address the historic mistreatment of these people. As well, it specifically discusses the residential school system that was used, among other things, to inflict ‘cultural genocide’ by the government of Canada on Indigenous persons.

I encourage anyone who thinks unkindly of the Indigenous peoples of Canada to educate themselves about the historic wrongdoings that were inflicted upon Indigenous persons in Canada. Perhaps, those who are so poorly informed as to make racist comments about Indigenous persons will find such an education to be constructive. I truly hope that it may help them to alter prior misconceptions. [ 19 ] From the Gladue letter, I note that Ms Kreyger’s mother, Joyce, and her two brothers were all subjected to being forcibly

removed from their family and put in the residential school system. Joyce was four years old when taken. She suffered physical and mental abuse during her time in the residential schools. After leaving that system, Joyce was not permitted to return to her own family by the authorities rather she was put into foster care. Eventually, Joyce was able to regain her autonomy although I am not clear at what age. At age 19, she came to the Stratford area, married and raised a family. Worth noting is Melissa’s statement that “her mother never let us leave without a hug or a kiss.

I don’t know if it was from losing so much of her family. She gets depressed of what she can’t control”. [ 20 ] As noted in the letter, the impacts on the children who were forced to attend the residential schools were passed on to their children and subsequent generations. These impacts are also felt by Melissa’s generation.

It is to Melissa’s credit that she has lived a productive, family and community-oriented life despite the maltreatment of her mother and other family members. 4) Additional Sentencing Considerations [ 21 ] Counsel noted that Ms Kreyger had an unrelated Highway Traffic Act conviction from 1998 but both sides chose not to rely on it for the purposes of sentencing, in this matter. [ 22 ] Counsel rightly expressed that I must address specific and general deterrence as part of a sentence.

However, the Crown fairly conceded that the issue of specifically deterring Ms Kreyger from committing a similar offence in the future is not an issue in these proceedings.

Initially the Crown sought a jail sentence of 60 days as well as a five year driving suspension, community service and other conditions as part of a probation order. [ 23 ] Ms Kreyger’s counsel submitted that jail was not appropriate in the circumstances of the defendant rather a fine of at least the mandatory minimum fine of $2000, a four year driving suspension and a probation order of at least 18 months to include community service. [ 24 ] The principle of parity sets out that a sentence must be within the range of other sentences for the same offences committed in similar circumstances.

As section 130(3) of the Highway Traffic Act is relatively new there are very few prior sentencing decisions for counsel and myself to consider to help guide us to a fair sentence in this matter. [ 25 ] The Crown (Ms Wilson) submitted in its Book of Authorities (see exhibit) 3 cases which all dealt with the law prior to the introduction of s. 130(3).

These were helpful but distinguishable on the facts so they were not determinative in this matter, especially under the changed law. [ 26 ] Ms Van Drunen in her submissions referenced two local cases R v McArthur and R v Kraal (both cases were unreported, I believe) where pleas were taken on s. 130(3) charges and joint submissions were accepted by the court.

Ms Wilson noted that the underlying facts in those cases also make them distinguishable to Ms Kreyger’s matter. 5) Joint Submission [ 27 ] Much has changed since this matter was first before me last February at which time, I reserved my sentencing decision to await the Gladue document and to then prepare the decision.

In June, prior to a teleconference with counsel and myself on the further scheduling of this matter for my decision, I was advised that counsel had now had a meeting of the minds for a joint submission on sentence, apparently in part, upon considering the Gladue letter. [ 28 ] A joint submission on sentence is a position which demands much deference by this court. My requirements for considering a joint submission are set out in the Supreme Court of Canada’s decision in R v Anthony-Cook, 2016 SCC 43 ; [2016] S.C.J. No.43.

The requirement of a sentencing justice to follow a joint submission except under very unique circumstances is what Ms Wilson referenced in her remarks on the McArthur and Kraal decisions noted above. [ 29 ] In the telephone conference of 22 June the outline of the proposed joint submission was entered as part of the court’s record. In my view, the joint submission has been well thought out by counsel. It addresses the issue of the over incarceration of Indigenous persons in Canada by agreeing on a fine rather than a jail sentence.

It places significant penalties on Ms Kreyger including a fine and a four year driving prohibition. In addition, Ms Kreyger will enter into a probation order which will require her to complete an additional 50 hours of community service. The total of 150 community service hours is intended, in some small way, to pay back to the community for causing the death of a beloved and contributing member of the community. [ 30 ] In my view, this joint submission provides meaningful general deterrence to other drivers to always be aware of their obligation to watch for and stop at stop signs.

I see nothing in the joint submission which causes me concern such that I would be disinclined to accept it under the Anthony-Cook decision. 6) Sentence [ 31 ] I now sentence Ms Kreyger, as per the joint submission from counsel, to the following: (

a) A fine of $2,000. (

b) A four year driving prohibition with no exceptions. (

c) Probation for two years with the following conditions: (

i) You shall not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; (ii) You shall appear before the court as and when required. (iii) You shall not operate or have care or control of a motor vehicle.

(iv) You shall not contact or communicate directly or indirectly with Jason Satchell’s immediate family members except with their express consent. (

v) You shall complete 50 hours of community service at a rate of not less than 5 hours per month commencing 1 October 2020. 7) A Final Word [ 32 ] It had been the hope of all of the parties for me to make a sentencing decision on 22 June during our teleconference. Ms Kreyger and members of the Satchell family were on that call. Understandably, they all wanted closure. With the courts then closed due to the pandemic, it was the preference of all those involved for me to accept the joint submission and put it in place during that call.

Unfortunately, at that time the provisions of the Provincial Offences Act (POA) did not permit me to do that by teleconference. Thankfully, the Government of Ontario has since amended the POA so such matters can now be dealt with by electronic means, as we are doing on today’s date. I wish to thank everyone involved for their patience in bringing this matter to a conclusion. I also wish to express my gratitude to Ms Wilson and Ms Van Drunen for their great help and thoughtful counsel throughout these proceedings. Released: 21 September 2020 Signed: “Justice of the Peace M A Cuthbertson”