R. v. Obermok, 2023 ONCJ 401

ONTARIO COURT OF JUSTICE CITATION: R. v. Obermok , 2023 ONCJ 401 DATE: 2023 09 20 COURT FILE No.: Windsor 21-11740 BETWEEN: HIS MAJESTY THE KING — AND — DARRIN OBERMOK Before Justice S. G. Pratt Heard on 27 February, 5 May, 4 July 2023 Reasons for Judgment released on 20 September 2023 Jonathan Lall...................................................................................... Counsel for the Crown Evan Weber................................................................................ Counsel for the Defendant Pratt J.: [ 1 ] The Canadian court system is a powerful entity.

Civil courts can order the payment of millions of dollars. Family courts can dictate where children should live, and remove them from a parent’s custody if necessary. Federal courts can strike down and invalidate legislation passed by the elected members of Parliament. Criminal courts can imprison citizens for life. Our courts wield tremendous power. [ 2 ] In a case like this, however, the mighty court system is entirely ineffective. I cannot put the parties back to where they were prior to the offence date. For all of the options available to me, I cannot provide the one remedy everyone in this room truly wants.

I am left with trying to fashion a just sentence for criminal conduct. I do not presume that the sentence imposed today will make the aftermath of 10 November 2021 any easier to live with for anyone. My only hope is that it closes this particular chapter. My hope and prayer for all parties is that they find the strength to move forward in some manner. Scarred and bent, yes; but, I hope, not entirely broken. [ 3 ] Darrin Obermok pleaded guilty to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm.

I received numerous victim impact statements and an update on Avery Parent’s medical condition from the Crown and a volume of medical records and character letters from Mr. Obermok’s counsel. I also had the benefit of a Pre-Sentence Report. [ 4 ] Both counsel also filed briefs of authorities. I want to thank both counsel for their professional and respectful handling of this case. I can say without hesitation that both sides were well-represented. [ 5 ] These are my reasons for sentence. Facts [ 6 ] The facts underlying the guilty pleas were filed in an agreed statement made Exhibit 1 to this proceeding.

For the sake of clarity, as there were two direct victims of these offences, I will refer to them by their first names, rather than as “Victim”. [ 7 ] On 10 November 2021, at approximately 718pm, Mr. Obermok was operating his 2012 Chevrolet Equinox motor vehicle

northbound on Lakeshore Road 113. He was nearing the highway’s intersection with County Road 42. In approaching the intersection, he would have passed a sign advising of a stop sign ahead. The intersection itself had a stop sign for his lane as well as a flashing red light. The speed limit on Lakeshore Road 113 at that point was 60 km/h. [ 8 ] Avery Parent was operating her GMC Terrain motor vehicle eastbound on County Road 42. With her in the vehicle was her two-year old son, Ethan Spada. Ethan was strapped securely into a front-facing child seat in the rear seat area of the vehicle.

At its intersection with Lakeshore Road 113, County Road 42 has the right of way. No stop signs or traffic lights govern the intersection for vehicles going in either direction on County Road 42. [ 9 ] When he approached the intersection, Mr. Obermok did not heed the warning of a stop sign ahead. He did not stop at the stop sign, or even slow down. Instead, going approximately 105 km/h, he entered the intersection at the worst possible moment. His vehicle struck Avery’s vehicle, sending it off the roadway and through a fence. [ 10 ] Emergency services soon arrived and all involved parties were taken to hospital.

Both drivers suffered significant injuries that I will address later in these reasons. Despite the efforts of first responders and civilians on scene, Ethan died of the injuries suffered in the crash at 810pm. [ 11 ] While speaking with Mr. Obermok in hospital, police noticed an odour of alcohol on his breath. He ultimately provided two samples of his breath directly into an approved instrument, registering readings of 20mg and 10mg of alcohol per 100mL of blood. These readings were taken approximately four hours after the crash. I note that an empty beer can was later found in Mr. Obermok’s vehicle. [ 12 ] Dr.

Daryl Mayers, a forensic toxicologist from the Centre of Forensic Sciences estimated Mr. Obermok’s blood alcohol concentration at the time of the crash to be between 30mg and 90mg of alcohol in 100mL of blood. He opined that Mr.

Obermok could have been impaired at the lower end of that range and would have been impaired at the higher end. [ 13 ] It is acknowledged as part of the agreed statement of facts that the following passage from the collision reconstruction report is accurate: The Chevrolet entered into the intersection at a high rate of speed and collided with the GMC as it was passing through the intersection. Excessive speed and failing to stop at the stop sign by the Chevrolet were the causes of this collision. [ 14 ] As well, the Chevrolet made no attempt to stop before entering the intersection.

Finally, it is further admitted that Avery’s injuries and Ethan’s death were caused by the collision. Positions of the Parties [ 15 ] The Crown seeks a jail sentence of 4-6 years together with a 15-year driving prohibition. It has argued that the offence is simply too serious for anything less. [ 16 ] Counsel for Mr. Obermok argues for a conditional sentence of imprisonment in the range of 18 to 24 months.

While agreeing that a driving prohibition must follow, he leaves the duration of that prohibition to the Court. [ 17 ] The offence of dangerous driving causing bodily harm is punishable by up to 14 years imprisonment, while dangerous driving causing death is punishable by life imprisonment (see: ss. 320.2(

a) and 320.21). Pre-Sentence Report [ 18 ] I have the benefit of a Pre-Sentence Report (PSR) authored by Probation and Parole Officer Sarah Beattie. The PSR notes a somewhat difficult upbringing where Mr. Obermok witnessed domestic violence and upset in the home. His parents split when he was in Grade 9. He does not maintain regular contact with his siblings or other family members. [ 19 ] Mr. Obermok suffered a brain injury in a serious motor vehicle collision at the age of 21.

According to the PSR, “This resulted in several years of hospitalization and recovery.” He went on to be certified as a dental assistant but has made his living primarily as a carpenter. This employment continued until he was injured in the November 2021 collision. He has not worked since, but has applied for a disability pension. The injuries suffered in the present matter have exacerbated his pre-existing conditions. [ 20 ] Regarding substance and alcohol use, he admitted using marijuana as a pain management strategy. He also uses Suboxone for pain. Dr. David Adekoya stated that he expected Mr.

Obermok to require pain management for the rest of his life. [ 21 ] The final paragraph of the PSR under the heading “Substance Use and Addictions” reads as follows: The Offender was adamant during the interview that he was not intoxicated at the time of the offence and denied that substance use was a factor. [ 22 ] To Ms. Beattie, he presented as very remorseful. He told her of the guilt he feels for what he did. He spends most of his time in his room because of his physical limitations. His former wife, Kim Obermok, told Ms.

Beattie she was concerned for his mental and physical well-being after a sentence is imposed. [ 23 ] Dr. Seth Aborhey is Mr. Obermok’s physician. He outlined the relevant diagnoses for the PSR. They are:

(1) Post-traumatic stress disorder;

(2) Major depressive disorder;

(3) Adjustment disorder;

(4) History of alcohol abuse – in remission; and

(5) A C1-C2 cervical fracture that has been fused. [ 24 ] Dr. Aborhey advised that the main issue facing Mr. Obermok is the non-union of his C1-C2 fracture. He said this will require ongoing monitoring in case the condition worsens. [ 25 ] Overall, I would find the PSR to be neutral. On the one hand, Mr. Obermok is clearly remorseful. On the other, it seems to me he is minimizing his issues with alcohol. His wife noted increasing concern with his drinking in the months leading up to the collision.

His primary physician spoke of a history of alcohol abuse (on that point I note the doctor said the abuse was in remission but it is not clear when that remission started. All involved seem to agree that Mr. Obermok hasn’t consumed alcohol since the collision). There was an empty beer can in his car, and his blood alcohol concentration was likely somewhere between 30-90mg. Against that evidence, I have his adamant denial that he was intoxicated or that substance use played any role in the collision. I do not share Mr.

Obermok’s opinion in that regard. [ 26 ] While not part of the PSR, I received several pages of medical records detailing Mr. Obermok’s treatment following the collision. He underwent several surgeries related to the spinal fracture noted above, and also suffered a scalp contusion and multiple rib fractures. I also have documents from a psychotherapist and the Canadian Mental Health Association. They speak of the ongoing emotional impact the collision has had on him. Finally, I have letters of support from Mr. Obermok’s wife and daughter. Victim Impact Statements [ 27 ] I received eight Victim Impact Statements.

They were from:

(1) Avery Parent

(2) Kerri Spada – Ethan’s paternal grandmother;

(3) Gaspare Spada – Ethan’s paternal grandfather;

(4) Dave Parent – Avery’s father and Ethan’s maternal grandfather;

(5) Mary Wilson – Avery’s mother and Ethan’s maternal grandmother;

(6) Chelsea Vickerd and Laine Parent – Avery’s brother and sister-in-law and Ethan’s aunt and uncle. Laine is also Ethan’s godfather;

(7) Corina Spada – Ethan’s aunt; and

(8) Paul Bortignon – Ethan’s uncle. [ 28 ] I have worked in the criminal justice system for nearly 25 years. In that time, I have likely read hundreds of Victim Impact Statements. I am always impressed by the strength that victims of serious offences are able to summon to put in writing how a crime has affected them. I have read of countless lives ruined by criminal conduct. But I have never had a group of statements quite like the ones filed in this case. [ 29 ] Each statement is an eloquent testimony of loss and pain. Each is heart-wrenching, even for those of us who have been in these courts for many years.

Dave Parent speaking about his morning TV time with Ethan. Gaspare Spada playing with Ethan in his garage. Kerri Spada’s last memory of her grandson being him telling his father Steven “Daddy you’re my best friend”. Corina Spada hearing Avery’s screams at the hospital. Paul Bortignon reflecting on Ethan’s charming personality, infectious smile, and caring demeanour. Chelsea Vickerd and Laine Parent talking about cycling between unhealed emotional pain and anger at the senselessness of it all. Mary Ellen Wilson somehow blaming herself for not being able to help her family heal as she deals with her own trauma.

Finally, Avery’s own statement. Every word underscores how this collision has completely upended her entire existence. I also note that at no point in her statement does Avery ever mention her own injuries. It is as though her physical pain has been wholly displaced by her emotional pain. [ 30 ] That Avery has ignored her own physical injury is all the more striking when one reviews the Memo provided by the Victim Witness Assistance Program. It details the extent of the injuries and the ongoing care she is receiving. She sustained a broken L5 vertebra and three broken ribs. She also had a concussion and whiplash.

According to the memo, she now attends a total of ten weekly appointments with physiotherapists, a chiropractor, and others, and five monthly appointments with other therapists. [ 31 ] The effects of her injures are numerous. She has ongoing pain and migraines. She takes several medications every day and needs a walker and a back brace to walk anything more than short distances. She has battled suicidal thoughts. She is unaware when, if ever, she will be able to return to work. She has been diagnosed with post-traumatic stress disorder, severe depression, and anxiety.

She has tried to drive since the collision, but it has triggered a strong enough stress response that she’s gotten physically ill. [ 32 ] In

summary, I could not overstate the impact these offences have had on the Spada and Parent families. Their pain is utterly apparent from their words and the reading of their statements in court. [ 33 ] Before I leave this area, I want to comment on another aspect of it.

Section 2 of the Criminal Code defines “victim”, in part, as someone who has suffered emotional harm as the result of an offence. In criminal cases of violence, serious injury, or death, courts rightly focus on the impact offences have on those directly involved. Too often we overlook the effect offences like these have on first responders. I recognize that paramedics, firefighters, and police voluntarily undertake work that will expose them to difficult, and at times horrific, scenes. That voluntary undertaking speaks to their character. It does not reduce the emotional impact of what they not

only must encounter, but must also act on as part of their profession. I’m sure the scene they came upon the night of the collision is onethat will stay with them. That impact deserves to be acknowledged. Principles of Sentencing [34] The Criminal Code sets out guiding principles for judges to follow in determining fit sentences. Several of these principles areapplicable to the present case. [35]

Section 718 states: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [36]

Section 718.2(a)(iii.1) directs that evidence of a significant impact on the victims of the offence shall be deemed to be anaggravating factor.

Section 718.2(

b) states that sentences should be similar to those imposed for similar offences on similar offenders. [37] Finally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [38] Specific to the present offences, s. 320.22 makes the fact that more than one person suffered bodily harm or death as a result ofthe offences a statutorily aggravating factor.

Caselaw [39] In addition to the legislative principles set out above, appellate and other trial courts have provided guidance in determining fitsentences. [40] One of the most recent decisions dealing with the offence of dangerous driving causing death is R. v. Robertson 2022 ONCJ240. In that case, my sister Justice Caponecchia imposed a 17-year sentence on an offender whose driving caused the death of a motherand her three young daughters. That offender disregarded a red light, entered an intersection and struck the victims’ vehicle.

He hadbeen driving at a very high rate of speed through a residential area and had already driven through a stop sign. Police pursued him to noavail. He was estimated to be travelling 134km/h when he entered the intersection and struck the victims’ vehicle. At the time, he wasfound to have more than the allowable limit of THC in his blood. He had also driven dangerously two days prior, crashing his vehicleinto a sidewalk barrier before leaving the scene.

Then too, police tried to pursue him but could not catch up despite reaching a speed of130 km/h in a 60 km/h zone. [41] To be sure, Robertson has significant factual differences from the present case. He engaged in two different episodes ofdangerous driving, both resulting in collisions. He was found to have over the legal limit of THC in his blood at the time of the fatalcollision. On both occasions, he fled from police. Finally, his conduct resulted in the loss of four innocent lives. [42] While the cases are factually different, the underlying principles are of great assistance.

So too is the review of caselawundertaken by Justice Caponecchia. At paragraph 79 and onward, Her Honour reviewed cases where a single death had resulted fromdangerous driving. I will not repeat her summaries but I have reviewed them. They suggest a range of five to twelve years’imprisonment, with one exception. That exception was R. v. Romano 2021 ONCA 211 , [2021] O.J. No. 1858 (C.A.), where apolice officer in an unmarked vehicle sped through a residential area. He struck and killed a pedestrian. He received an eight-monthsentence after trial.

That case is clearly an outlier and is of little assistance to me. [43] The balance of the cases reviewed in Robertson are clear that penitentiary sentences should be the usual result in cases wheredriving conduct results in the death of another person. [44] The Crown also provided the case of R. v. Ramage 2010 ONCA 488, where a four-year sentence was imposed followingconvictions for impaired operation causing bodily harm and death, and dangerous operation causing bodily harm and death. Thatsentence was upheld on appeal. [45] On behalf of Mr. Obermok, defence counsel also filed several cases.

Among them is the Romano decision I’ve alreadyreferenced. [46] The case of R. v. Kirkpatrick 2018 ONCJ 208 saw the offender operate his motor vehicle at a high rate of speed in Toronto. Bumps in the road sent the car airborne. It struck a building and another vehicle. Kirkpatrick’s passenger suffered fatal injuries. TheCrown sought an 18-month sentence while the defence sought 9-12 months. The Court sentenced him to 14 months custody followed byprobation and a two-year driving prohibition. [47] R. v. McLennan 2016 ONCA 732 is a local case that involved a conviction for dangerous driving causing death. McLennan

consumed alcohol and then drove, ultimately getting into a single-vehicle crash that killed his 16-year old son. He was sentenced to 9 months jail, probation, and a one-year driving prohibition. [ 48 ] In R. v. Manahan 2010 ONCJ 360 , the offender drove dangerously and collided with a large boulder. The impact killed his passenger instantly. Relying on a lack of prior record, a short period of dangerous driving, and the fact that no other persons were affected by the offender’s driving, the Court imposed an 18-month conditional sentence.

The Crown had sought a one-year sentence, while defence asked for a mid-range conditional sentence. [ 49 ] R. v. Machado 2012 ONSC 4614 dealt with a joint submission for a conditional sentence. The parties differed only on the length of the sentence. The Crown argued for two years less a day while the defence sought an eight-month sentence. The Court imposed an 18-month conditional sentence. [ 50 ] The case of R. v. Hutchinson 2022 ONCJ 276 was factually unusual. Following a collision with an e-bike, the offender was charged with dangerous driving causing bodily harm.

Nearly three years after the collision, and after the offender had already entered a guilty plea, the victim died of his injuries. The charges were amended but the offender made no attempt to change her plea. Justice Harris imposed a conditional sentence of two years less a day after reviewing various relevant cases, the Machado decision among them. His Honour also made the following noteworthy observation at paragraph 178: I am cognizant of the fact that these decisions do not stand for the proposition that a conditional sentence should be imposed in all driving cause death cases.

On the contrary, for every such case where a conditional sentence was imposed I believe there to be hundreds (if not thousands) of cases where the offender was sentenced to a significant jail term. [ 51 ] Finally, R. v. Smith 2023 BCPC 36 is a decision of the British Columbia Provincial Court that saw the offender given a conditional sentence of two years less a day following a conviction for dangerous driving causing death. At the time of the collision that killed his passenger, the offender had “a number of intoxicating substances in his body”.

He was an indigenous offender with a history of substance addiction. Factually, he was in a very different position than Mr. Obermok. [ 52 ] As is often the case, sentencing caselaw can be helpful at best, contradictory at worst. This is because the sentencing process itself is almost entirely subjective. An offence such as dangerous driving can be committed in many ways, and each offender is different and deserving of individual attention.

That said, there are indications that Parliament and the courts have begun taking a different view of serious driving offences than they used to. [ 53 ] Firstly, Parliament changed how these offences can be punished. As of 18 December 2018, a whole new regime governing driving offences came into effect. Among the myriad changes, maximum sentences for dangerous driving causing bodily harm or death were increased. Prior to the changes, the maximum sentences were ten years and fourteen years, respectively. Under the new legislation, the maximums have increased to fourteen years and life imprisonment.

While no one is advocating for the maximum sentences in the present case, the changes are still important because they signal Parliament’s wishes. As stated by Justice Watt in R. v. Lis 2020 ONCA 551 at paragraph 49 : Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament's decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence: Lacasse, at para. 7; Friesen, at paras. 96-97.

To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentence: Friesen, at para. 100. [ 54 ] Similarly, Parliament increased the maximum sentences for impaired operation causing bodily harm and driving with excess blood alcohol causing bodily harm to equate them with the penalties for the corresponding dangerous driving offences.

Parliament now treats serious impaired driving offences and serious dangerous driving offences equally. [ 55 ] Secondly, sentencing courts have begun imposing much harsher sentences for these offences than was the case previously. While Robertson may represent the high-water mark for such cases, the imposition of lengthy penitentiary sentences, especially in cases with multiple victims, has become increasingly common.

This may be, at least in part, the result of the frustration felt by sentencing judges and referred to by Justice Caponecchia in Robertson at paragraph 110 : To the extent that this sentence represents a departure from the cases that have come before it, I would note that the Ontario Court of Appeal very recently recognized that trial judges may, from time to time, become frustrated with a particular approach that is developed by appellate courts.

Trial judges are on the front lines of the justice system and they will be the first to see if a particular approach is either not working or has become outdated. [ 56 ] The case Her Honour refers to is R. v. Lynch 2022 ONCA 109 , where Justice Nordheimer acknowledged that “our approach to sentencing is not, and should not be, fixed in stone. Sentences may increase or decrease as societal and judicial knowledge and attitudes about certain offences change” (see paragraph 12). It is clear, through the actions of a democratically elected Parliament, that attitudes towards serious driving offences have changed.

Those changes must be reflected in the sentences courts impose. Aggravating Factors [ 57 ] I have already indicated that the significant impact these offences have had on the victims is a statutorily aggravating factor. So too is the fact that there were multiple victims. [ 58 ] I must be careful not to consider what is in reality an element of the charged offence as an aggravating factor (see: R. v. Sears [2021] O.J. No. 3926 (C.A.) ). I cannot, for example, consider the dangerousness of the driving as an aggravating factor as that feature is already accounted for in the offence itself.

To be clear, it is still entirely relevant in arriving at a fit sentence, but an element of an offence is not an additional aggravating factor.

[59] A significant aggravating factor in this case is the presence of alcohol in Mr. Obermok’s blood. Breath testing and subsequentcalculations by a forensic toxicologist place his blood alcohol concentration between 30-90mg of alcohol per 100mL of blood at the timeof the collision. There was also an empty beer can in the vehicle. The consumption of alcohol before getting behind the wheel is astrongly aggravating factor in this case. I am not assuming the worst and ascribing the upper end of the range estimated by thetoxicologist to Mr. Obermok.

I am, however, recognizing the unchallenged fact that at the time of the collision, he had a measurableBAC that may potentially have been over the legal limit or in a range where he would have been given an immediate roadside licensesuspension had he been the subject of a roadside breath test. [60] Counsel made submissions on the role alcohol could play as an aggravating factor in this case given Parliament’s changes in2018. Counsel for Mr.

Obermok argued that as impaired driving cases are now treated the same as dangerous driving cases as it relatesto sentencing maximums, alcohol has been subsumed into the sections and should not be considered a separate aggravating factor. Respectfully, I disagree. Had Mr. Obermok been convicted of both impaired operation and dangerous driving, I may have beenprecluded from using alcohol consumption as an aggravating factor on the count of dangerous driving as it was already an element of theimpaired count. That is not the present situation. Alcohol consumption is not an element of dangerous driving.

It is a feature over andabove the elements of the offence that increases the seriousness of Mr. Obermok’s conduct. The 2018 legislative amendments do notchange that. Mitigating Factors [61] The primary mitigating factor in this case is Mr. Obermok’s clear and genuine remorse. I have had the chance to observe himthrough multiple court appearances. When he says how sorry he is for what happened, I believe him. I also find his guilty plea to bemeaningful. It was agreed when a joint submission had been negotiated by his former counsel with the Crown.

When the Crownsubsequently repudiated that agreement and advised they would seek a much higher sentence, the intention to plead guilty remained. That is significant and it underscores Mr. Obermok’s desire to take responsibility for his actions. [62] It is also mitigating that at age 56, his criminal record is limited to one entry from forty years ago. He has not been in troublesince and has been a productive member of the community throughout his adult life. He has the support of his former spouse and istrying to improve his relationships with his children. I received a letter from Brooke Obermok, Mr.

Obermok’s daughter. She made onecomment I want to address. She said, “At the end of the day my dad did a bad thing, but I promise you he is not a bad person.” I can tellBrooke and the rest of the Obermok family that I do not think your father and husband is a bad person. He is being sentenced today forwhat he did, not for who he is. Analysis [63] I begin my analysis by assessing the defence argument for a conditional sentence of imprisonment. Such a sentence would allowMr. Obermok to serve any jail sentence he receives in his home, rather than in a custodial facility. [64]

Section 742.1 permits the imposition of a conditional sentence of imprisonment in certain cases. There are requirements thatmust be met before such a sentence can be imposed. The sentence must be less than two years, and the court must be satisfied that aconditional sentence would not endanger the safety of the community and that it would be consistent with the fundamental purpose andprinciples of sentencing. [65] The Supreme Court of Canada added an important corollary to the requirement that a sentence be less than two years. In the caseof R. v.

Fice 2005 SCC 32 , [2005] 1 S.C.R. 742, Justice Bastarache said the following at paragraph 39: In Proulx, this Court held that "Parliament intended that a conditional sentence be considered only for those offenders who would haveotherwise received a sentence of imprisonment of less than two years" (para. 49). It was not designed for those offenders for whom apenitentiary term is appropriate.

Thus, once a sentencing judge considers the gravity of the offence and the moral blameworthiness of theoffender and concludes that a sentence in the penitentiary range is warranted and that a conditional sentence is therefore unavailable,time spent in pre-sentence custody ought not to disturb this conclusion. (Emphasis added) [66] If a sentencing judge determines a penitentiary sentence, that is, a sentence of two years or more, is appropriate, anyconsideration of a conditional sentence comes to an end.

It is simply not available. [67] In my view, a conditional sentence is not available or appropriate in this case. These offences require a penitentiary sentence. Aconditional sentence is therefore eliminated from consideration. Even if it wasn’t, however, I would find that such a sentence would beinconsistent with the purpose and principles of sentencing.

It would be outside the range for similar offences and be disproportionate tothe gravity of the offence and the degree of responsibility of the offender. [68] The cases filed where a conditional sentence was imposed show that such a sentence is possible in the right circumstances. In myview, however, the 2018 legislative changes should recalibrate what is considered an appropriate sentence in a case like this. While notprohibiting conditional sentences, the current state of the law would seem to reserve them for only the most remarkable cases.

The casesof Hutchinson and Smith post-date the amendments, but neither is binding on me, and I decline to follow them. [69] What, then, is a fit sentence? [70] The words of Justice Doherty of the Court of Appeal for Ontario at paragraph 70 of Ramage underscore the difficulty indetermining a fit sentence: Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is nosingle sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge mustmake his or her selection.

That selection is driven by the judge's evaluation of the sentence that best reflects his or her assessment of thecombined effect of the many variables inevitably at play when imposing a sentence.

[ 71 ] In Ramage , the sentencing judge was faced with an offender who was “an outstanding member of the community” who had caused the death of one person and debilitating injuries to another through his driving. On appeal, Justice Doherty quoted the reasons of the trial judge at paragraph 67: My responsibility in this matter is to impose a sentence on an offender who is an exemplary citizen, who has committed a serious crime with tragic consequences. ...

It is not an easy task but the message of general deterrence must be met. [ 72 ] Justice Doherty described the interests at stake in that case as “competing, if not irreconcilable”. I would echo those comments here. [ 73 ] The tragedy that has befallen the Parent and Spada families is immeasurable. No sentence I impose could ever erase their loss. Making this situation even worse is the fact that Avery was completely blameless. She ensured Ethan was properly buckled into his car seat. She was driving appropriately on a road where she had the right of way. She did absolutely nothing wrong.

Responsibility for this event rests solely with Mr. Obermok. [ 74 ] I also do not ignore the impact these offences have had on the Obermok family. They too, are blameless, but they too have had to deal with the fallout from that awful night. [ 75 ] Mr. Obermok chose to drink and get behind the wheel of his vehicle. He says alcohol played no role in the collision and that he was not intoxicated at the time. How, then, can anyone explain his disregard of the “stop ahead” warning, the flashing red light, and the stop sign itself, and his decision to enter the intersection at nearly double the posted speed limit?

He made no attempt to even slow down before hitting Avery’s vehicle. In his own statement in court, Mr. Obermok said he didn’t know why he didn’t stop. The only reasonable inference available to be drawn is that he was at least somewhat under the influence of alcohol at the time of the collision. [ 76 ] The sentence today must be proportionate to the gravity of the offence and the degree of responsibility of the offender. These offences are gravely serious and entirely the responsibility of Mr. Obermok. [ 77 ] I have heard evidence of Mr. Obermok’s ongoing medical issues.

His doctor has expressed concern about his neck fracture in particular. I am hopeful he recovers from his injuries. Medical care will be available in the penitentiary system. [ 78 ] Balancing all aggravating and mitigating factors, and applying the relevant principles of sentencing and the guidance provided by other courts, I find a fit sentence in this matter to be as follows:

(1) Mr. Obermok will be imprisoned for a period of five years;

(2) He will be prohibited from operating a motor vehicle on any road, street, highway, or other public place for a period of 15 years;

(3) He will provide a sample of his DNA to the Ontario Provincial Police for inclusion in the national DNA databank on or before 31 October 2023;

(4) There will be a victim surcharge of $200 on each count, with six months to pay. [ 79 ] The prison term and driving prohibition will be concurrent on each count. The DNA order is on each count. [ 80 ] Everyone involved in this case has lost. I repeat my hope and prayer that all can find some way to move forward. Released: 20 September 2023 Signed: Justice S. G. Pratt