) ) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 2396

CITATION : R. v. Christink, 2010 ONSC 2396 COURT FILE NO.: 08-070 DATE: 2010-04-26 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ISSAC CHRISTINK ) ) ) ) ) ) ) ) ) ) ) Mr. Michael J. Martin, for the Crown Mr. Clayton J. Conlan, for the Defendant ) ) HEARD: November 6, 2009 REASONS FOR SENTENCE Thompson J. [ 1 ] Isaac Christink was convicted of two counts of dangerous driving which resulted in the deaths of Travis Bromley and Shauna Tobin, passengers in Mr.

Christink’s vehicle. [ 2 ] The events which led to the deaths of Travis Bromley and Shauna Tobin are set out in my Reasons for Judgment dated January 21, 2010. Suffice it to say their deaths were tragic and devastating to their families. [ 3 ] Isaac Christink drove his car at an excessive speed, well in excess of twice the posted speed limit. As a result, he was unable to react to a change in the road course he encountered. Mr. Christink was travelling at a high speed solely to impress his passengers with the power and speed capabilities of his sports car. His actions were irresponsible to say the least.

Alcohol was not a factor. Other than speed, there was no other reckless driving on the part of Christink. However, the extreme high speed left Mr. Christink unable to react to the road condition he encountered. [ 4 ] Prior to submissions from counsel, twelve Victim Impact Statements were read to me by family members and friends of the families. Their pain at the loss of their loved ones was clearly apparent. Their statements were from their hearts and no doubt are etched into the minds of those hearing the statements concerning the tragic loss suffered by the families’ members collectively and individually.

Nothing this court can do or say can reverse the tragic consequences of Mr. Christink’s driving the night of November 10, 2006. [ 5 ] A Presentence Report was requested and received by the court. I will comment shortly about its contents, but it reveals the following basics concerning Isaac Christink. Mr. Christink is 36 years of age. He married for the second time in September 2008, his first marriage having terminated after the car crash of November 10, 2006. Mr.

Christink and his wife have two children – his wife’s seven year old daughter from a previous relationship and a two year old son from the current union. Mr. Christink is self-employed in the personal security field and as a carpenter, although the degree of his employment is not as claimed in the pre-sentence report and other documentation filed with this court. [ 6 ] Mr. Christink was convicted in June 1998 of driving with more than 80 milligrams of alcohol in 100 millilitres of blood and fined $300. He was prohibited from driving for one year. He has been convicted five times of speeding since 1991.

He has several other convictions under the Highway Traffic Act for improper plates, disobey sign and seat belt offences.

[ 7 ] Several days prior to submissions as to sentence being received, counsel provided me with the Victim Impact Statements, caselaw briefs and Defence Character Letters on Sentencing. I was also in receipt of the Presentence Report prepared by a Probation and Parole Officer from Ottawa , where Mr. Christink now lives. [ 8 ] In the volume provided to me by defence counsel entitled “Defence Character Letters on Sentencing” is a statement dated March 29, 2010 and signed by Isaac Christink. That document stated: “ I work carpentry during the week and security from Wednesday to Sunday morning each week.

I maintain 3 jobs and have for the last three years. One third of my money goes solely to transportation needs. Not having the privilege to drive has been a severe punishment in my life due to the fact that in my professions it is required to hold a valid drivers license. During the day, Monday to Wednesday 8a.m. to 5p.m., I work construction contracts that I am able to secure. When successful, I must get my tools and equipment to and from the site along with materials that I require. I have had to hire men to drive me to accommodate these responsibilities.

Wednesday evening I start my security work either at venues or in close protection. This work starts at approximately 8p.m. and goes to 3-5a.m. the next day. I sleep until 10 a.m. and start or complete the construction work I have on the go. My security work takes me until Sunday morning around 5a.m. To do close protection I am required to jump from location to location throughout the shift or contract. I have again had to hire drivers to accommodate these fluctuations.

I maintain 3 jobs in order to pay for the extra driving costs. [my emphasis] As the bread winner in the family and not having the opportunity to get contracts overseas where earnings are considerably higher, I have had to take on much lower paying security jobs and work longer hours. My wife cannot financially support our household with 2 children. She makes just above minimum wage so I must stay gainfully employed constantly to provide a proper living for our family. Without a driver’s license it has made it sometimes impossible so I do whatever I can to provide for us.

Sometimes I work for $10.50 per hr for 12-16 hours a day. There are other jobs but they require a driver’s license as mobility is required to jump from location to location. City transportation can take anywhere from 1 hour to 2 hours to get around Ottawa, depending on the location, so this is not an option for me whether I am working construction or security. In conclusion, excessive long hours of work, lack of a driver’s license, lack of better paying work along with my absence from home due to work are obstacles that have left a serious hole in our lives and our marriage.

I know my wife feels alone and does as much as possible to keep this family together, we both do. All the time I have spent working keeps me away from her and the children and from responsibilities in our home but there is no other choice at the moment. Since the ruling it has gotten worse, she is terrified that we will loose everything if I am not here to provide financially. The stress of this situation has a very serious impact on our lives.” [ 9 ] A review of the Presentence Report revealed the following statements: (i) “The subject currently works in the security field which he enjoys.

He and two partners run a security company, Director Protector, which provided basic security services and venues as well as close protection services. According to his business partner, Joel Assaly, the subject is an essential part of the business and a period of incarceration would have negative effects on the company. The subject also provides security to various businesses in the Market area of Ottawa which is home to several bars and night clubs. This was confirmed via pay stubs provided by the subject. Despite his long hours, the subject advised that he and his family are experiencing financial difficulty.

His wife previously ran a home day care business but has since obtained a sales job in order to better provide for herself and her children in the event that the subject cannot. As a result, the family has daycare expenses. The subject expressed concern they would not be able to meet these expenses on one income. The subject expressed concerns that he may not be able to sustain the extended hours and lifestyle required doing front line security work as he ages. His goal is to train in Emergency Medical Services (EMS) overseas and to obtain his EMS Certificate.

If his finances and his legal situation permit, he would like to attend an intensive program in South Africa in Tactical Paramedic Training. He indicated that he has few prime years remaining to do this type of work. He stated that he hopes to stay involved in security in administrative and training roles.” (ii) “The subject’s mother.... indicated that he is a workaholic.” (iii) “The subject is described as a hard working individual. He currently runs his own security company with two partners and also does security work for private and business establishments in Ottawa .

The subject is the primary provider in his family and sources indicated that his wife and children would face financial devastation in the event of a jail sentence.” [ 10 ] I appreciated counsels’ efforts to provide me with material prior to submissions. This allowed me the opportunity to reflect on what counsels’ proposed sentences would be and to, in a preliminary manner, consider what an appropriate sentence would be. [ 11 ] Reviewing the submitted caselaw briefs, it became readily apparent that Mr.

Christink’s counsel would be requesting a conditional sentence, while Crown counsel would be seeking incarceration. [ 12 ] With this background information and knowing that any conditional sentence would in all probability consist of “house arrest” with exceptions for employment and other “necessities”, I commenced the exercise of determining when Mr. Christink would be available to serve his sentence when not involved in the “exceptions”. Relying on his statement contained in the “Defence Character Letters on Sentencing”, I concluded that: (

i) Mr. Christink works Monday to Wednesday from 8 a.m. to 5 p.m. on construction projects; (ii) Mr. Christink works on security work commencing Wednesday evenings at 8 p.m. to the following morning between 3 a.m. - 5 a.m. The security work involves Wednesday night/Thursday morning; Thursday night/Friday morning; Friday night/Saturday morning; and Saturday night/Sunday morning. (iii) On Thursday, Friday and Saturday morning, having slept between 5 – 7 hours, Mr. Christink works on construction commencing at 10 a.m.

The end result was that Mr. Christink suggested he was engaged in employment as follows: (

i) Monday 8:00 a.m. to 5:00 p.m. (ii) Tuesday 8:00 a.m. to 5:00 p.m. (iii) Wednesday 8:00 a.m. to 5:00 p.m.; 8:00 p.m. to 3:00-5:00 a.m. (iv) Thursday 10:00 a.m. to ?; 8:00 p.m. to 3:00-5:00 a.m. (

v) Friday 10:00 a.m. to ?, 8:00 p.m. to 3:00-5:00 a.m. (vi) Saturday 10:00 a.m. to ?, 8:00 p.m. to 3:00-5:00 a.m. (vii) Sunday – not employed. [ 13 ] Mr. Christink’s suggested employment

schedule was given credence by the Pre-Sentence Report authored by a Probation Officer in Ottawa . In retrospect, it appears she was misled as to the extent of Mr. Christink’s employment. [ 14 ] Conditional sentences are real sentences. They are alternatives to simple incarceration. They are intended to have teeth and not simply to be a “grounding” of a wayward member of society. [ 15 ] In my preliminary consideration of an appropriate sentence (prior to submissions) I became concerned that a conditional sentence for Mr.

Christink with exceptions for employment and other requested exceptions would be no sentence at all. As a result, I requested submissions from Mr. Christink’s counsel as to where the teeth were in his proposed sentence. [ 16 ] At the sentencing hearing, the Crown requested and, with defence counsel’s consent, was granted the right to cross-examine Mr. Christink on his statement filed in the “Defence Character Letters on Sentencing.” That cross-examination revealed that Mr.

Christink had attempted to deceive the court as to the extent of his employment, presumably to persuade the court to impose a conditional sentence allowing him to continue that employment and support his family. [ 17 ] Cross-examination revealed that: (

i) Concerning Mr. Christink’s employment in the field of carpentry he did very little in 2009, earning only minimal income. In 2010 he has only had one contract. I heard of no other planned construction projects. Mr. Christink testified that it was not necessary for him to leave the confines of his home to solicit or quote on carpentry/construction jobs. (ii) Mr. Christink, in 2009, was the sole proprietor of Director Protector. In 2010 he took in two partners who assist him in his security work. Director Protector is said to provide close security protection for individuals.

The majority of Director Protector’s work is as a result of work directed to it by A-List Entertainment. Mr. Christink testified that Director Protector made close to $10,000 in 2009 at the rate of $100 per hour, although that claim was not substantiated by any documentation. He testified that Director Protector had 2, maybe 3, jobs upcoming on April 25, June 2 and July lst. (iii) Mr. Christink testified that he was an employee at the Parliament Ultra Club in Ottawa , being employed as a risk manager and head of security.

He told the court he earned $10.50 per hour while being engaged in these positions and that in 2009 he earned a total of $6,053.11. Rather than the suggestion in his letter that he was engaged in security work from Wednesday evening at 8:00 p.m. and each evening in the remainder of the week until the early hours of Sunday morning, Mr. Christink advised, during cross-examination, that he works Friday or Saturday nights - usually Saturday nights. Mr. Christink advised that he expected 6 to 8 shifts over the coming months. (iv) In the course of Mr.

Christink’s cross-examination, the Crown produced an affidavit, sworn to by Mr. Christink, filed by Mr. Christink’s appeal counsel in support of an application for bail pending appeal. That affidavit stated: “I currently work 3 jobs. I am employed at the Parliament Ultra Club as the head of security and risk management. I am also self employed and operate Direct Protector, a body guard service with approximately 25 employees. In this capacity, I also train security guards and some police officers with the Ottawa Police and the R.C.M.P. Finally, I work part-time as a carpenter.” (

v) In cross-examination, Mr. Christink admitted that Director Protector does not have, nor ever has had, 25 employees. That statement about the number of employees is not true. Director Protector has not even had one employee. He also acknowledged that Director Protector has no connection with the Ottawa Police or the R.C.M.P. vis-a-vis training. The police training he referred to in his affidavit consisted of showing four (4) friends who were police officers how to operate a C-8 assault rifle for $20. His training of security guards consisted of a half-dozen training sessions.

He stated he had no upcoming training sessions planned. [ 18 ] I was concerned by Mr. Christink’s attempts to mislead the court. I considered whether, if at all, this deceit should factor into my determination of an appropriate sentence. I concluded that I should not consider this conduct in reaching my decision. I determined that this conduct should be a matter later dealt with by the authorities should they so determine. [ 19 ] Accordingly, Mr. Christink’s deceit, or at least my perception of it, has played no

part in my decision making process. [ 20 ] I am satisfied that Mr. Christink is remorseful and sincerely wishes he could reverse his actions of the night of November 10, 2006. Unfortunately, and tragically, he cannot. Because of his irresponsible desire to impress his passengers with the speed capabilities of his car, two young people died. The sheer speed to which the vehicle was driven, thereby impairing Mr. Christink’s ability to properly control his car, is an aggravating factor. This was not a momentary lapse in judgment. Mr.

Christink made an obvious choice to disregard common sense. [ 21 ] At issue is whether Mr. Christink’s actions were so egregious as to prove him ineligible for consideration of a conditional

sentence. [22] The primary considerations in the imposition of a sentence for dangerous driving causing death are denunciation and generaldeterrence. These considerations do not automatically translate into incarceration. There are differing degrees of the manner of drivinginvolved, some more brazen than others. Each circumstance must be considered on an individual basis.

While there is no range ofsentence to be imposed for the offence of dangerous driving causing death, sentences in excess of two years have historically beenreserved for manners of driving which involve multiple vehicle manoeuvres over and above simple speed. The manner of driving in thiscase does not call for a penitentiary term. [23] A conditional sentence is available in cases of dangerous driving causing death (R v Proulx 2000 SCC 5 , 140 CCC(3d) 449 at paragraph 79 – Supreme Court of Canada).

The statutory pre-conditions must be met and thereafter it must be consideredwhether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in

section 718 ofthe Criminal Code. [24] Having concluded that a penitentiary term is inappropriate in all the circumstances, I must then consider the safety of thecommunity should Mr. Christink be permitted to serve his sentence in the community. I believe that an increased prohibition fromdriving will ensure the public’s safety. Mr. Christink is prohibited from driving anywhere in Canada for 5 years from the date of thissentence. Driving in Canada is a privilege, not a right. Mr.

Christink, over his driving career, and in particular his driving the night ofNovember 10, 2006, relinquished that privilege for the period of time I have designated. [25] As I indicated earlier, conditional sentences - that is sentences that permit the offender to serve their sentence in thecommunity - are real sentences. Such sentences should be punitive in nature where the prime consideration is denunciation and generaldeterrence. They should reflect the serious nature of the offence. As stated earlier, such sentences should contain teeth and not be seenas mere slaps on the hand.

Such sentences are custodial in nature and are not intended to be licenses for criminal activity. [26] There will be a

section 109 Criminal Code order prohibiting Mr. Christink from possessing any firearm, cross-bow, restrictedweapon, ammunition and explosive device for a period of 10 years. [27] There will be a DNA order. [28] Isaac Christink is sentenced to two years less one day on each count concurrent. He is to be permitted to serve thesesentences in the community – that is to be served conditionally on the statutory terms set out in

section 742.3(1) of the Criminal Code ofCanada, plus the following conditions: (

a) that Isaac Christink not be outside his residence without the written consent of his Supervisor. Mr. Christink’s residence isdefined by the footprint of his rented accommodations and the boundaries of its front, side and backyard. (

b) that Isaac Christink may engage in gainful employment only with the prior written consent of his Supervisor. He will bepermitted to travel directly to and directly from such consented to employment. Isaac Christink will not be permitted to engage inproposed gainful employment unless he has provided his Supervisor with written proof of employment in the form of a formal contract ofemployment, which contract must contain the hours of employment, the remuneration to be paid for such employment and a

schedule ofpayment. Isaac Christink shall be required to provide proof of payment for his services within a reasonable time of the completion of hiscontract, such a reasonable period of time to be set by his Supervisor. It is intended that such contracts will be required on an ongoingbasis as they relate to his carpentry business, Director Protector and employment with Parliament Ultra Club, or any other servicesrendered by Mr. Christink. (

c) that Isaac Christink may travel directly to, attend, and return directly from preapproved medical and dental appointments forhimself, together with emergencies involving the health and safety of himself or his wife and children. (

d) that Isaac Christink may attend a funeral for an immediate member of his family. (

e) that Isaac Christink not reside where alcohol is kept or stored nor enter any place where the primary business is the sale ofalcohol. (

f) that Isaac Christink participate in a program of electronic surveillance designed to ensure his compliance with this order asdirected by his Supervisor. Any cost of such a program is to be borne by Isaac Christink. (

g) that Isaac Christink provide a copy of this order to the police detachment nearest his residence within two days of this order andprovide written proof of so doing to his Supervisor within one week of today. (

h) that Isaac Christink carry a copy of this order on his person at all times and provide a copy of same to any police officer, ondemand. Isaac Christink must carry any written approval of his actions by his Supervisor on his person and produce a copy of same to apolice officer, on demand. _______________________ Mr. Justice R.M. Thompson Released: April 26, 2010

CITATION : R. v. Christink, 2010 ONSC 2396 COURT FILE NO.: 08-070 DATE: 2010-04-26 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ISSAC CHRISTINK REASONS FOR SENTENCE The Honourable Mr. Justice R.M. Thompson Released: April 26, 2010