nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 265 Date: 2017 09 11 Docket: Crim 32 of 2016 Judicial Centre: Melfort BETWEEN: HER MAJESTY THE QUEEN and NORMAND MARC JOSEPH LAVOIE Counsel: Tyla R. Olenchuk for the Crown Michael D. Nolin for the accused SENTENCING DECISION DOVELL J. September 11, 2017 A. Introduction [1] On May 3, 2015, shortly after 4:00 p.m., tragedy occurred within construction zone on Highway No. in the Province of Saskatchewan approximately eight kilometres south of Spalding, Saskatchewan. Three innocent teenagers in small Cobalt vehicle lawfully stopped at the side of the highway under construction were senselessly killed when their vehicle was struck in the rear by semi‑truck driven by Normand Lavoie. young flag person standing near their vehicle was severely injured. [2] The function of the Court at this time is to sentence Normand Lavoie. That sentence must be just and fair and be consistent with previous judicial decisions in this jurisdiction, if at all possible. The Court is well aware that no sentence will relieve the families of the pain they have endured and are enduring and may well continue to endure for the rest of their lives or the deep remorse Normand Lavoie has as “the boys faces are tattooed in his brain”. There is no remedy for the total destruction caused as result of Normand Lavoie’s inattention for whatever reason as he drove his huge heavy semi‑trailer through the construction zone on that fateful day over two years ago. There is really nothing that the Court can do to remedy what has happened. It cannot be remedied. The only thing the Court can do is to sentence Normand Lavoie in accordance with the objectives and principles of sentencing as contained within the Criminal Code, RSC 1985, C‑46. [3] To the families of Carter, Kristian and Justin, the Court wants to express its sincere heartfelt condolences. The Court is very much aware of the pain you have and are experiencing as expressed within the victim impact statements read in court. That pain is palpable, but as we all know the one thing all of you really want, being the return of Carter, Kristian and Justin, just cannot happen. B. The Charges [4] On May 30, 2017, Normand Marc Joseph Lavoie pled guilty to the following offences: Count #1: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Justin Gaja, contrary to Section 249(4) of the Criminal Code of Canada. Count #2: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Carter Stevenson, contrary to Section 249(4) of the Criminal Code of Canada. Count #3: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Kristian Skalicky, contrary to Section 249(4) of the Criminal Code of Canada. Count #4: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused bodily harm to Samuel Fetherston, contrary to Section 249(3) of the Criminal Code of Canada. C. Agreed Statement of Facts [5] Counsel for the Crown and defence filed an Agreed Statement of Facts which provided: 1. On May 3, 2015, Carter Stevenson (hereafter referred to as “Carter”) age 17, Kristian Skalicky (hereafter referred to as “Kristian”) age 15, and Justin Gaja (hereafter referred to as “Justin”) age 14, were on their way home from football camp. 2. On Highway 6, approximately km south of Spalding, SK, they came upon construction zone. Their vehicle, white Chevrolet Cobalt (hereafter referred to as “the Cobalt”), was stopped behind Ram 1500 half ton which was towing trailer with quad on it (hereafter referred to as “the Ram 1500”). 3. Both vehicles were stopped by flag person Samuel Fetherston (hereafter referred to as “Sam”). He had started work as flag person on May 1, 2015 and was wearing bright green construction‑style clothing with hard hat and stop sign. pilot vehicle operated by MacKenzie Cairns was leading traffic through the work area and had just finished bringing group of southbound vehicles through. 4. The construction zone had started 1.6 km south of the scene, with the following signage at 100m intervals (See photos of signage): a. Electronic sign board with the message: Asphalt crack sealing next 10 km/6 am to pm b. Orange “Workers Present” sign c. White “No Passing” sign d. Orange “Be Prepared to Stop” sign (this sign was located on its side after the collision and it is undetermined as to when it was knocked over) e. White “Maximum 60 km/h Fines Triple” sign f. Orange “Flag Person” sign 5. The accused, Normand Lavoie, was operating semi unit, travelling northbound. He was hauling foam insulation panels. He entered the construction zone at normal highway speeds and did not reduce his speed according to the signage. 6. When the semi unit impacted with the Cobalt, it was travelling at minimum speed of 84 km/h. 7. The semi unit impacted the rear of the Cobalt, which pushed it into the back of the Ram 1500. The Ram 1500 was thus pushed across the center of the roadway and impacted the pilot vehicle on the southbound shoulder (see [photo of] final rest positions). During this, the Ram 1500 struck Sam and he was thrown into the northbound ditch. 8. Carter, Kristian, and Justin were killed on impact. The Cobalt was crushed (see photo of Cobalt). Sam sustained broken left collarbone, broken left clavicle and broken left humerus. He lost the use of his spleen and continues to experience short‑term and long‑term memory loss. 9. At 1622 hours, Melfort RCMP Officers were advised of the collision. When members arrived, STARS ambulance was treating Sam and he was airlifted to Saskatoon. 10. The accused had been told by eyewitnesses to stay in his vehicle after the collision. He was later transported to Melfort Hospital. His dog, which was in the cab, was taken to Melfort veterinary clinic. 11. RCMP seized the accused’s log books, which were analyzed by the Highway Traffic Board. There were no issues noted in relation to hours of work or distances covered to indicate fatigue. 12. Cpl. Doug Green, forensic accident reconstructionist, had attended the scene of the collision and determined that the cause of the collision was the actions of the accused. He failed to recognize the stopped vehicles in the active construction zone and to allow sufficient distance to bring his vehicle to safe stop before colliding with the rear of the Cobalt. 13. Normand Lavoie was arrested and returned to Melfort. He provided warned statement to Cst. Shmyr on August 27, 2015. 14. During that statement, when asked what was happening prior to the collision, he stated that “with it being Saskatchewan, it’s flat and kind of just go into auto pilot”, which he indicated would have impacted his reaction time. He could not recall entering the construction zone or seeing the construction signs and assumed he would have been travelling at 100 km/h. 15. When asked if he had been distracted by his dog in the cab, the accused stated “all remember is heard... like was in just, you know, auto pilot cruising and heard something ... don’t want to say snapped me out of it but you know what mean? And then looked back quickly [at the dog] and then turned back and there’s the back end of the car.” 16. The accused attended for sleep analysis after the collision and was diagnosed with mild apnea. During the analysis, he stated in relation to the collision, he could not recall falling asleep. In the diagnosis, the doctor stated that it was not clear if the collision was related to hypersomnolence, but that the accused did admit having felt drowsy in passive situations. 17. During his warned statement, after disclosing the mild apnea, Cst. Shmyr asked “were you sleeping or were you tired?” and the accused replied “No”. He clarified that to him, auto pilot means “you’re keeping the thing on the road” and that “you’re just kind of in lala land, basically I’m there behind the wheel but I’m not.” When asked second time if he was tired or sleeping, he told Cst. Shmyr “I’m definitely tired but wasn’t sleeping. didn’t fall asleep behind the wheel.” D. Additional Facts Admitted by Counsel [6] In addition to the facts as contained within the Agreed Statement of Facts and/or by way of clarification, counsel agreed that this tragic incident occurred shortly after 4:00 p.m. on May 3, 2015. [7] The six signs referred to within paragraph of the Agreed Statement of Facts, and attached in the photographs, were all within the first 600 metres of the construction zone, 100 metres apart in the order in which they are depicted in the pictures. In other words, the electronic signboard with the message “Asphalt crack sealing next 10 km/6 am to pm” was the first sign within the construction zone and the remaining five signs, 100 metres apart, were within the first 600 metres of the construction zone before the location where the collision occurred. [8] The Court has no evidence as to what activity there was, if any, within the construction zone either on the highway or adjacent to the highway other than those six signs within the first 600 metres of the construction zone to the accident scene 1.6 kilometres into the construction zone. That would include whether or not there were any workers or work equipment either on the highway or adjacent to the side of the highway. [9] The speed limit within the construction zone was 60 kilometres per hour. There were no skid or brake marks prior to the actual collision site as between the Cobalt and Normand Lavoie’s semi‑trailer. [10] The injuries sustained by Sam Fetherston as contained within paragraph of the Agreed Statement of Facts and, in particular, broken left collarbone and broken left clavicle are the same injury. In other words, left collarbone and left clavicle as listed within paragraph are one and the same. Crown counsel did not have any medical reports to substantiate any of the injuries sustained by Sam Fetherston, including his claim to having short‑term and long‑term memory issues. [11] There is no suggestion whatsoever that alcohol and/or drugs were involved in this tragic accident. [12] There is no evidence that Normand Lavoie had ever travelled on Highway No. in the Province of Saskatchewan before May 3, 2015, and, in particular, had ever driven through the construction zone south of Spalding, Saskatchewan, within which this fatal accident occurred. E. Criminal Record of Normand Lavoie [13] The criminal record of Normand Lavoie was marked as Exhibit P2. There is only one conviction, that being for driving with more than 80 mgs of alcohol in his blood pursuant to s. 253(b) of the Criminal Code in Steinbach, Manitoba, on September 20, 2001. Although driving abstract was not filed, counsel confirmed that his driving record was totally clean and that he had no previous driving offences other than the .08 he obtained sixteen years earlier. F. Pre‑sentence Report [14] The 20‑page thorough pre‑sentence report dated August 14, 2017, prepared by Probation Officer Andrew Vergara and endorsed by the area director designate, Patrick Cortino, was filed as Exhibit C1. The report, having been prepared by Manitoba Justice, did not include any input from the victims as we usually see within pre‑sentence reports prepared in Saskatchewan; however, the Court is totally satisfied that it has sufficiently heard from the victims in this matter. That was accomplished during the sentencing hearing when the family members, and in particular, the mothers of the three teenage boys, gave their victim impact statements. [15] The pre‑sentence report filed with the Court contains detailed information regarding Normand Lavoie, including his upbringing and his present situation. There were eighteen sources of information used in the preparation of the report which covered his criminal history and attitude, family/marital, education and employment, alcohol/drug use, companions, leisure/recreation, supplementary information and Manitoba Corrections Assessment and Recommendations. Manitoba Corrections completed Level of Service/Case Management Inventory [LS/CMI] on August 8, 2017, and Normand Lavoie was assessed as low risk to re‑offend. The significant criminogenic risk factor identified for him was education/employment. The other factors which may be important for case management included mental health, trauma counselling and finances. G. The Offender [16] At this time, Normand Lavoie is 41 years of age, married and has three children, one being autistic. As result of these criminal charges, he is uninsurable as truck driver and will, in the future, have to retrain. Following the accident, he has suffered from post‑traumatic stress disorder and has been diagnosed with “mild apnea”. It is important to note that prior to the accident, sleep apnea was not an issue for Normand. [17] Normand is extremely remorseful for the catastrophic situation he has caused as a result of his unexplained inattentiveness. Although he became truck driver initially primarily as result of his losing his mother and grandmother in an accident involved semi‑truck when he was 18 years of age, he now believes that because of this tragedy, he has failed in his efforts to make it right by becoming responsible truck driver. For the most part Normand, since obtaining his A‑1 driver’s license in 2009, has been responsible truck driver; he having clean driving abstract. Although he has been unemployed since February 2017, for the vast majority of his life he has been gainfully employed and respectable law‑abiding member of society. He has been out on recognizance since May 2015 without any suggestion of any breaches of his conditions of release. H. Victim Impact Statements [18] Section 722(1) of the Criminal Code provides: Victim impact statement 722(1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. [19] The victim impact statements were compelling, and the pain expressed by the three mothers, in particular, was palpable. [20] First, we heard from Shelley Enns, the mother of Carter Stevenson, who was seventeen years of age at the time of his death. She has not set foot in the grocery store she and Carter went shopping at in preparation for their football camp weekend more than two years ago. In concluding her two‑page victim impact statement, she wrote, “To Carter am still wearing my ‘Mom glasses’. love you so much”. picture of Carter and Shelley’s victim impact statement, as well as the victim impact statements of Carter’s brothers Cody and Rhett, Carter’s step –dad Norm Enns, and letter from Carter’s teacher to the Enns family dated August 18, 2015, were marked collectively as Exhibit P3. [21] Second, we heard from Lisa Skalicky, the mother of Kristian Skalicky, who was fifteen years of age at the time of his death. Within her victim impact statement, she described Kristian as very spiritual young man who had written in an essay in January 2015 entitled “Is there master of the plan or are we masters of the plan?”: “Life is like game of cards. Your deck is determined but the way you play them is free will.” That is like God, he will give you the cards and give you good cards at the start but it’s your choice which path to go down. God gives us the choice but at the same time he is the master of our plans. If you want him to he leads you to greatness and happiness. [22] The pain Lisa has endured as result of the loss of Kristian has resulted in her leaving her home as “it was just too hard to continue living there”. Lisa’s victim impact statement and picture of Kristian were marked collectively as Exhibit P4. [23] Lastly, Crystal Gaja, the mother of Justin Gaja, who was fourteen years of age at the time of his death, read her victim impact statement. She described how Justin was very structured and always came home for lunch. She would stand at her kitchen window and watch for him. As soon as she could see him coming through the trees, she knew it was time to get his food on the plate. Some days she still stands at her window and watches. She wrote: “The trees are still there, so is the path, but my son is not.” [24] In closing her victim impact statement, she wrote: Because my love for my son will always remain, so will the pain. Losing my son is not wound that time heals, it is life sentence. The day that now look forward to is the day that take my last breath here on earth. Because that will be the only day that all the pain, tears, sadness and sorrow will finally be gone, forever. [25] picture of Justin, Crystal’s victim impact statement and the victim impact statements of Justin’s aunt April Buyaki and Justin’s grandmother Betty Richardson were marked collectively as Exhibit P5. [26] Although Sam Fetherston was not in attendance at the sentencing hearing, his two victim impact statements were marked collectively as Exhibit P6. I. Section 726 of the Criminal Code Statement of Normand Lavoie [27] Section 726 of the Criminal Code provides: Offender may speak to sentence 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [28] At the conclusion of the sentencing hearing Normand Lavoie made the following statement: Okay. To the families of Carter, Kristian, Justin and Sam, what happened to you is inexplicable and should never have happened. should never have been on that road. You know, as strange as it may sound, know exactly how you feel. Because my mom and grandma were actually taken by truck driver as well. And since then, it's been my driving force to make sure that what happened to me, doesn't happen to anybody else. Unfortunately, failed catastrophically in that aspect. There is nothing can say, there's nothing can do now. Your boys, from what heard, were wonderful boys, and there's not day that goes by that doesn't hurt me. Every night spend, can barely sleep at night. And all think of, all see was that accident. never saw their faces, but have since seen their faces through the media and gotten their names, and will never forget them. You know, contemplated taking my life once or twice because of it, but have family of my own that needs me. And me going to jail isn't going to bring them back. These past two years have been really stressful on my family and myself. But am fully prepared for what's to come. I've made my peace with what's to come. haven't driven the truck since, nor do plan on returning to the truck, because can't do it anymore. There's no way. There's no way can do it. That in itself is the anguish and trauma that go through every day with reminders of big trucks going by, construction crews on the road. Even coming out here from Winnipeg, couldn't do the drive. Cynthia had to do all the driving, because couldn't do it. Long distances scare the hell out of me now. And, yes, do understand that what did was wrong. did something wrong. It was not intentional, it was an accident, it was accidental. have condition that didn't know that had at the time. That it caught up to me. Because it being undiagnosed, it just accumulation [sic] which resulted in what happened, and yes, am at fault. admit that, but did not do this intentionally. Now, if you could find it in your hearts to maybe someday forgive me. It doesn't have to be now, or it can be 20 years from now. completely understand the anger, the frustration, vengeful feelings that you have for me, because I've been there too. I've never met the driver that killed my mom and grandma, and not to mention almost took my little brother, too, but please understand that am truly, deeply sorry for your losses, and that will never forget them. Their pictures are seared seared, tattooed in my brain. I'm never going to forget them for the rest of my life. May God and you have mercy on me. J. Position of the Crown [29] It was the position of the Crown that the Court should impose sentence of six years imprisonment in federal institution. In addition, the Court should impose nine‑year driving prohibition pursuant to s. 259(2) of the Criminal Code, ten‑year s. 109 of the Criminal Code firearm prohibition Order, secondary DNA Order pursuant to s. 487.051 of the Criminal Code and victim surcharge pursuant to s. 737 of the Criminal Code of $800.00 payable forthwith and in default eight days consecutive to the six‑year sentence. K. Position of the Defence [30] It was the position of the defence that the Court should impose sentence of two years plus one day in federal institution. The defence agreed that ten‑year s. 109 of the Criminal Code Order is appropriate but did not take any position with regard to the length of driving prohibition pursuant to s. 259(2) of the Criminal Code or the secondary designated offence DNA Order requested by the Crown. The defence agreed that the victim surcharge of $800.00 pursuant to s. 737 of the Criminal Code should be payable forthwith and in default period of eight days to be served consecutively to the penitentiary sentence. L. Sentencing Provisions of the Criminal Code [31] This decision must be guided by the purposes and principles of sentencing as contained within ss. 718 to 718.2 of the Criminal Code. Purpose 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce 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 sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Fundamental principle 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating and mitigating circumstances relating to the offence or the offender ... nan (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. M. Analysis [32] In sentencing Normand Lavoie, the Court has considered all of the purposes and principles of sentencing as contained in ss. 718 to 718.2 of the Criminal Code. [33] In dangerous driving cases, however, denunciation and deterrence play significant role in maintaining public confidence in the administration of justice. [34] Although this Court in 2015 made the point in Dunford, 2015 SKQB 386 (CanLII), 92 MVR (6th) 26, that sentences in dangerous driving cases must deter others from driving dangerously, particularly in highway construction zone, we keep getting situations in which individuals are convicted of dangerous driving within those construction zones. This must stop. Not only truck drivers driving huge heavy “death machines” but all drivers of all vehicles driving in construction zones must follow the law and reduce their speed and drive attentively. Just too many things can go wrong. Construction zones are very dangerous places to be in for everyone, both the construction workers and the occupants of every vehicle that enters that construction zone. [35] In addition, Normand Lavoie’s unlawful conduct must be denounced. Cpl. Doug Green, forensic accident reconstructionist, determined that the cause of the collision was the actions of Normand Lavoie. He failed to recognize the stopped vehicles in the active construction zone and to allow sufficient distance to bring his vehicle to safe stop before colliding with the rear of the Cobalt in which Carter, Justin and Kristian were occupants. [36] The fundamental principle of sentence being proportionate to the gravity of the offence, as well as the degree of responsibility of the offender, must also be considered by the Court in sentencing Normand Lavoie. [37] Lastly, the additional sentencing principles as outlined in s. 718.2 of the Criminal Code, including aggravating and mitigating factors in this case, and similar sentences which have been imposed for similar offences committed in similar circumstances must be considered by the Court. To the greatest extent possible, parity must be accomplished considering other sentences imposed for individuals convicted of dangerous driving causing death and causing bodily harm. In seeking that parity, the totality principle must also be applied by the Court in determining what the ultimate sentence will be for multiple counts as contained within an Indictment related to the same incident. This is an intricate process that must be crafted with great care by the sentencing judge in determining what the ultimate sentence should be. very difficult task for any judge especially when it involves the death of multiple individuals. [38] In this case, although Normand Lavoie is Métis, defence counsel advised that there are no Gladue factors (R Gladue, 1999 CanLII 679 (SCC), [1999] SCR 688) that need to be addressed by this Court pursuant to s. 718.2(e) of the Criminal Code. Notwithstanding counsel’s position, the Court has taken note of the Gladue information as contained within the pre‑sentence report filed with the Court. [39] The Crown presented spread sheet of 21 cases but indicated that it was, in particular, relying upon the following eight cases. Those eight cases include: (a) Bagri, 2017 BCCA 117 (CanLII), MVR (7th) 219; (b) Dunford, 2017 SKCA (CanLII), 345 CCC (3d) 374; (c) Reynolds, 2016 SKQB 21 (CanLII), 94 MVR (6th) 195; (d) Fedan, 2014 BCSC 2586 (CanLII); (e) Regier, 2010 ONSC 1963 (CanLII), 93 MVR (5th) 264; (f) Ernst, [2006] AJ No 949 (QL) (Alta QB); (g) Fitt, 2011 ONCJ 223 (CanLII), 14 MVR (6th) 246; and (h) Rij (1993), 44 MVR (2d) 299 (Ont Ct J). [40] Although the Crown candidly admitted that it had no authority to support its request for term of imprisonment of six years, she believed that such sentence was warranted primarily as result of the three deaths and severe injuries to fourth victim at the hands of professional driver within construction zone on Saskatchewan highway. [41] The defence provided the Court with 19 cases, of which there were two Saskatchewan cases which overlapped with the cases that were provided by the Crown. [42] Sentences for dangerous driving are very diverse. Although cases were provided to the Court which resulted in community‑based sentence, those cases are of limited benefit to the Court as that is not allowable or, indeed, appropriate at this time. It is, however, useful to point out how historically dangerous driving causing death cases have been dealt with in the past by the courts. [43] Both the Crown and defence counsel are requesting that the Court sentence Normand Lavoie to penitentiary sentence. The Court agrees that penitentiary sentence is appropriate considering the tragic facts of this case. At this juncture, the Court wants to make it crystal clear that it is not sentencing Normand Lavoie to penitentiary term so that he can be near his family; the Court is sentencing him to penitentiary term as it is appropriate to do so and has nothing to do about accommodating his possibly being near to his family. [44] Of the eight cases provided to the Court by the Crown, there were only two Saskatchewan cases: Reynolds, which resulted in sentence of eighteen months and eighteen months’ probation; and Dunford (CA), which confirmed the trial judge’s sentence of two years less day. The Reynolds case involved the death of two people in head‑on collision in fog on Saskatchewan highway. Mr. Reynolds was professional driver working at the time of the accident. The Dunford case involved the death of young pregnant flag woman when she was struck by vehicle driven by Mr. Dunford within construction zone in southern Saskatchewan. Although Mr. Dunford was professional driver, he was not working at the time of the accident. [45] Although neither counsel provided the Court with Saskatchewan dangerous driving causing death case in which penitentiary sentence was imposed, the Court is aware of the Belly, 2011 SKCA 88 (CanLII), case in which the Court of Appeal confirmed the joint submission made to the sentencing judge of 3½ years. The issue on appeal was the length of the driving prohibition order imposed, which the Court of Appeal reduced to ten‑year driving prohibition. The Belly case, however, is of limited assistance as it was joint submission regarding one count of dangerous driving causing death and involved an accused whose license was suspended at the time of the accident. [46] The remaining cases provided by the Crown resulting in penitentiary sentences from two and half years to six years were not Saskatchewan cases. Of particular assistance to the Court was the recent decision of Bagri. While confirming that in dangerous driving cases protection of the public through general deterrence and denunciation are paramount considerations for the Court, the British Columbia Court of Appeal also confirmed how difficult dangerous driving sentencings are as there are never two cases exactly the same. [47] In that case, the British Columbia Court of Appeal, at paragraph 25, stated: [25] The role of this Court on sentence appeal is limited, in recognition of the unique role of the sentencing judge and the discretionary nature of the exercise. That is clearly so in dangerous driving cases, where so much hinges upon an appreciation of the many factors in sentencing. As noted in Bosco [2016 BCCA 55]: [40] The factual circumstances of dangerous driving cases tend to vary widely. That being so, the range of appropriate sentences is quite broad. Factors such as the offender’s age, the circumstances of the accident, the duration of the dangerous driving, the existence or absence of criminal record, the degree of deviation from driving norms, the particulars of the highway and its use and driving conditions are all relevant factors for consideration. Although other cases provide helpful guidance, determining fit sentence in dangerous driving case is particularly fact‑sensitive exercise: Sadler, 2009 BCCA 386 (CanLII) at para. 34. [48] Mr. Bagri was sentenced to three years imprisonment. He was 45‑year‑old professional driver who had failed to adequately check the brakes of the truck he was driving at brake check stop and proceeded down hill on highway resulting in head on collision killing four persons. The Court found that his actions in failing to check the brakes were evidence of intentional risk‑taking and that stated at paragraph 6: [6] The trial judge concluded that, on the totality of the evidence the appellant was driving in dangerous manner. His conduct “was not momentary lapse of attention”. On all of the evidence, “including that of Mr. Bagri’s actual state of mind, failing to stop at brake check, driving large heavy truck in the oncoming lane of busy wet highway, through sharp curve on steep downhill grade, in excess of the posted advisory speed past some five cautionary or warning signs in the 0.7 kms prior to the collision scene”, the appellant’s conduct amounted to marked departure from the requisite standard of care. [49] Mr. Bagri was professional driver, as is Mr. Lavoie. Professional drivers were also involved in the Rij case and the Ernst case. The Rij case resulted in five‑year penitentiary sentence; however, Mr. Rij denied responsibility for the offence, resulting in the necessity of trial after which he was convicted of dangerous driving causing death. He had significant criminal record, including two previous dangerous driving convictions. At paragraph of that decision, the Court stated: [5] do not regard the facts relating to the offence of which the accused has been convicted as the worst possible case. However, find in all the circumstances in the evidence in this trial it is on the cusp of being the worst possible case and find this despite the fact that there was no evidence of alcohol consumption impairment or excessive speed. The accused is professional driver. He was driving five ton truck. He was acquainted with the intersection and think it can be judicially noted that the intersections in certain areas of this jurisdiction are heavily travelled. ... The accused, as professional driver being acquainted with the subject intersection, had to be aware of that. For whatever reasons, he went through red light. There was no evidence that he attempted to stop. characterize those particular facts as being on the leading edge of the worst case of the offence in question. In his submissions counsel for the accused took issue with the Crown's word “deliberate”. It may be question of semantics but it is my view on the evidence which was found as fact in this trial, the accused intended to run the traffic lights at the intersection. As indicated, this is not question of momentary lapse or inattention. He intended to run that intersection with the consequent risk to the safety of others on the highway and as events transpired, to the tragic results in this case. [50] The Ernst case resulted in 2½‑year penitentiary term. Like Mr. Lavoie, Mr. Ernst pled guilty avoiding the necessity of the trial. Although he had criminal record for driving‑related offences, including alcohol use, he, like Mr. Lavoie, had the support of his family. Mr. Ernst was also professional driver who knew that his trailer had no brakes and that the heavy nature of the load would require additional stopping time. His driving included erratic weaving in and out of traffic for some time, and there was no rational reason for his ultimately going through red light other than he was overtired. His actions resulted in the death of one person. [51] The only case that has resulted in six‑year sentence is Regier, which sentence was rendered following five‑day trial during which time Mr. Regier testified. He had three prior Criminal Code convictions and 25 highway traffic convictions. The accident involved “aggressive high speed” and resulted in two deaths and one individual seriously injured. At paragraph 10, the Court noted: [10] The defendant’s driving record discloses 25 highway traffic convictions over the past 28 years, including two further charges after the current charges came before the court: careless driving, and improper lane change when he almost caused an accident. note that when he was stopped by the police on Highway 17 with regard to the careless driving charge, he had driven past the place of the collision giving rise to the convictions currently before the court, and within four days of its second anniversary. [52] And at paragraph 18: [18] The defendant was speeding at the time of the collision between 110 and 120 Km/Hr. The speed limit was 90 Km/Hr. His driving at the time was needlessly aggressive and included very high speeds prior to the collision. Were this merely an isolated serious error in Judgment, it would not be an aggravating factor. However this was not isolated. It was more than an error in Judgment, and carried with it high degree of moral blameworthiness. [53] And lastly, the Court’s inability to accept Mr. Regier’s testimony or remorse was canvassed at paragraph 28: [28] While the defendant accepted responsibility for the collision, his explanation for how the collision came to happen was not accepted. And in fact it wasn’t true. therefore give little weight to the defendant's acceptance of responsibility. reject the defendant's submission that he is remorseful. Remorse is meaningless unless it carries with it some acknowledgement of wrongdoing. Otherwise it is just words. The defendant contends in submissions that he finds he can’t even drive past the place of the accident because he finds himself so overwhelmed. Yet almost two years to the day after the collision in question, just before being stopped by the police and then charged with careless driving, he drove right past the place of the accident on highway 17. reject that submission, and give no weight to the expressions of remorse. [54] Unlike the Court rejecting Mr. Regier’s remorse, the Court totally accepts Mr. Lavoie’s deep and sincere feelings of remorse. Although the Crown argued that Mr. Lavoie was minimizing his moral blameworthiness and was deflecting responsibility for the accident, the Court is not prepared to accept any such suggestions. The Court accepts that Mr. Lavoie, to this day, simply does not know what occurred that caused him to go into “la‑la land” or go “into autopilot” as he travelled Highway No. 6, other than the flat Saskatchewan prairie. There were no issues with his log book, which was analyzed by the Highway Traffic Board presumably with view to determining if he had been travelling too long without break to rest. He thinks he was travelling at highway speed, which would have been 100 kilometres per hour; however, the accident reconstructionist’s opinion is that Mr. Lavoie’s semi‑trailer was travelling at 84 kilometres per hour at the time of the collision. Although he cannot remember traveling that 1.6 kilometres from the beginning of the construction zone or seeing the six construction signs, something was going on in that the speed of the semi‑trailer would appear to be slowing down, although we will never know for sure. What we do know is that there were no steps taken by him to brake or avoid the collision as it was “just there”. [55] There are multiple aggravating and mitigating factors that the Court must consider in this matter. The aggravating factors include:(a) by far the most aggravating factor is the death of three innocent teenagers and the serious injury of a fourth person, a 22‑year‑old flag person;(b) the devastating impact the death of these three teenage boys has had on their families;(c) Normand Lavoie was a professional driver and, thus, capable of exercising more skill and vigilance;(d) the fact that a larger, heavier vehicle was involved, requiring more care; and(e) the accident occurred within a construction zone. [56] The mitigating factors include:(a) Normand Lavoie consented to his committal to trial in Queen’s Bench and pled guilty, accepting full responsibility for this horrific accident;(b) Normand Lavoie’s sincere and profound remorse;(c) alcohol and/or drugs were not a factor in this accident;(d) Normand Lavoie had a clear driving abstract for driving offences and a dated minimal criminal record;(e) Normand Lavoie is a low risk to re‑offend in the future; and(f) Normand Lavoie has the continued support of his family and community. [57] As previously indicated, no sentence will bring back Carter, Kristian or Justin or make it right for their families. While certainly realize that all of the families believe they have been handed “life sentences”, in reality Normand Lavoie has sentenced himself to “life sentence”. There is nothing that this Court can do that would surpass the penalty Mr. Lavoie has already handed down to himself. [58] The best the Court can do, unfortunately, is to consider the objectives and principles of sentencing, the aggravating and mitigating factors of this case and similar sentencing results for similar convictions for dangerous driving. Unfortunately, for the families sentencing is not perfect science but the best the law has to offer. N. Conclusion [59] Mr. Lavoie, would you please stand. [60] Considering all of the objectives and principles of sentencing as contained within s. 718 of the Criminal Code, including, in particular, denunciation and deterrence, both the aggravating and mitigating factors associated with this tragic occurrence, the principles of parity and totality and the voices of all of the victims involved in this matter, I sentence you with regard to Count No. 1, namely, dangerous driving causing the death of Justin Gaja, to a term of imprisonment of three years to be served in a federal institution. [61] As to Count No. 2, being dangerous driving causing the death of Carter Stevenson, I sentence you to a term of imprisonment of three years to be served in a federal institution concurrent to Count No. 1. [62] As to Count No. 3, being dangerous driving causing the death of Kristian Skalicky, I sentence you to a term of imprisonment of three years to be served in a federal institution concurrent to Count No. 1 and Count No. 2. [63] As to Count No. 4, being dangerous driving causing bodily harm to Samuel Fetherston, I sentence you to a term of imprisonment of one year to be served in a federal institution concurrent to Counts No. 1, 2 and 3. [64] Pursuant to s. 259(22) of the Criminal Code, you are prohibited from operating a motor vehicle on any street, road or highway or other public place for a period of five years following your release from imprisonment. [65] There shall be ten‑year mandatory firearm prohibition order pursuant to s. 109 of the Criminal Code. You shall be prohibited for ten years from your release from prison of possession of any firearm, other than a prohibited firearm or restricted firearm, and any cross‑bow, restricted weapon, ammunition and explosive substance. [66] As these charges are secondary designated offences, there shall be an order pursuant to s. 487.051(3) of the Criminal Code in Form 5.04 for the taking of bodily substances from yourself for the purpose of DNA analysis. The Court has concluded that it is in the best interests of the administration of justice to make this DNA order considering the factors as contained within s. 487.051(3) of the Criminal Code, including the nature of the offences, the circumstances surrounding their commission and the impact such an order would have on your privacy and security of your person. [67] Additionally, pursuant to s. 737 of the Criminal Code, order victim surcharge of $800.00 to be paid forthwith, failing which impose sentence in default of payment of eight days to be served consecutively to the global sentence have imposed of three years. “M.L. Dovell” J. M.L. Dovell
The accused was found guilty of three counts of dangerous driving causing death, contrary to s. 249(4) of the Criminal Code, and one count of dangerous driving causing bodily harm, contrary to s. 249(3) of the Code. During his employment as professional truck driver, the accused had driven into construction zone on highway and hit another vehicle that had been stopped. The three teenage occupants of the vehicle were killed and flag person was severely injured as result of the collision. The accused was sure that he had not been asleep at the time of the accident but felt that he had not been paying attention. He had not noticed any of the signs posted at 100-metre intervals after the start of the construction zone 1.6 km south of the accident. The accused was 41 years of age. He had obtained his A-1 driver’s licence in 2009 and had clean driving abstract. He was married and had three children. He had recently been diagnosed with mild sleep apnea. He expressed remorse to the victim’s families and suffered from post-traumatic stress disorder.| HELD: The accused was sentenced to three years in imprisonment on the first count and three years concurrent for the second and third counts, and one year concurrent to the other counts on the fourth count. He was prohibited from operating a motor vehicle for five years and from possessing a firearm for 10 years after his release from imprisonment. The aggravating factors in the case were that the accused’s inattentiveness caused the death of three people and severely injured another person. The impact of the children’s deaths was devastating on their families. The accused was a professional driver and capable of exercising more skill and vigilance, especially when he was operating a semi-trailer truck in a construction zone. The mitigating factors were that the accused pled guilty and expressed profound remorse. He had not been drinking and had a clear driving record. The accused was at low risk to re-offend.