Upon his plea of guilty, the appellant was convicted of Careless Driving Definition and was sentenced to jail for 90 days (to be served intermittently, on weekends) and probation for one year.
The accused appeals his custodial sentence. In addition to the general issue of the fitness of the appellant’s sentence, his appeal raises the issue whether, in assessing the fitness of the sentence, the fact that the appellant’s careless driving caused the death of another motorist may be taken into account.
The appellant was originally charged with dangerous driving causing death contrary to s. 249(4) of the Criminal Code. At his preliminary hearing, he elected trial by a General Division judge sitting without a jury.
After some evidence was heard, with the Crown’s concurrence, he entered a plea of guilty to Careless Driving Definition contrary to s. 130 of the Highway Traffic Act.
In convicting the appellant, the court accepted that careless driving, although not an included offence, was an “other offence arising out of the same transaction” as referred to in s. 606(4) of the Criminal Code. No issue is taken with the procedure followed.
The Facts of Accident
The statement of agreed facts, filed on consent, showed that at about 6:00 p.m. on April 6, 1993 the appellant was driving his car south on the 8th Line in the Township of Halton Hills. It was daylight and visibility was good. The road on which the appellant was driving was straight and dry.
The appellant was driving relatively slowly at about 50 kilometres per hour on a road where the speed limit was 70 kilometres per hour.
He was proceeding toward the 10th side road, an east-west through highway. Traffic proceeding south on the 8th Line is required to stop at the 10th side road. There was a clearly visible — “Stop ahead” — warning sign on the 8th Line about 161 metres north of the 10th side road.
This sign was obviously posted to warn southbound motorists that they are approaching an intersection at which southbound traffic is required to stop. There were some trees, a telephone pole and a fence which partly obstructed the view of the 10th side road for a motorist proceeding south on the 8th Line.
The trees were not in leaf and thus did not obstruct the appellant’s view to a significant degree.
As the appellant drove south on the 8th Line, he was followed at a distance of about 60 feet by an independent witness, Mitchell Butt. From his position behind the appellant, Mr. Butt had no difficulty seeing a white van approaching the intersection from the west, that is from the appellant’s right.
Mr. Butt said that he pulled over to the side of the road a short distance north of the intersection when he realized that the appellant was not going to stop at the intersection.
He testified that the appellant did not stop at the intersection and that his car was more than halfway through the intersection before its brake lights came on. This was immediately before the appellant’s car collided with an eastbound white van driven by Frank Hardy. Mr. Butt said that there was nothing unusual about the operation of Mr. Hardy’s van.
The appellant’s car collided with the rear quarter panel of the van causing the van to flip between 5 and 7 times. Tragically Mr. Hardy, the driver and sole occupant of the van, died as a result of head injuries he sustained in the accident. Mr. Hardy was married and was the father of two young children.
The Reasons for Sentence
After thoroughly reviewing the facts, and in particular the evidence of Mitchell Butt, the trial judge considered the distinction between dangerous driving, a Criminal Code offence, and careless driving, a Highway Traffic Act offence. He noted that the Legislature had established a maximum period of incarceration of six months for careless driving, a sentence reserved for the combination of the worst offence of careless driving and the worst offender.
The trial judge accepted Crown counsel’s submission that this is “…one of the worst examples of careless driving that could be conceived of …”. He reached this conclusion on the basis of the nearly perfect driving conditions which existed at the time, the unobstructed view a southbound motorist would have had of traffic on the 10th Sideroad, the stop ahead warning sign and the two prominently displayed stop signs at the intersection.
The trial judge said: The combination of these factors convinces me beyond a reasonable doubt that this is careless driving of the worst kind, attracting a period of incarceration.
In his review of the facts the trial judge noted that Mr. Hardy died as a result of the collision. He did not, however, refer to the fact that the appellant’s driving caused Mr. Hardy’s death as an aggravating factor.
In his reasons, the trial judge noted factors favourable to the appellant. He said:
In mitigation it should be noted the accused has no record of any kind, either criminal or driving. There is a favourable pre-sentence report in which he is described as someone who has come to this country, established himself, and indeed is now operating his own business as a dental technician with two employees.
The Fitness of the Sentence
We do not think much is to be gained by attempting to grade the appellant’s driving within the range of driving which would constitute Careless Driving. It will suffice to say that the appellant failed to keep a proper lookout, that is he failed to drive with due care and attention.
His inattention was brief in the sense that there is no evidence of an extended absence of due care and attention. His driving conduct clearly fell below that expected of a reasonable driver, that is a driver driving with due care and attention and with reasonable consideration for others on the highway. In our view, it is a clear, but not the worst, case of careless driving.
In our view, the trial judge in sentencing the appellant, was correct in emphasizing the quality of his driving. Further, in assessing the fitness of the sentence, we think it is appropriate to take into account the fact that the appellant’s driving caused an accident and Mr. Hardy’s death.
The appellant’s momentary distraction or preoccupation obviously caused him to drive without due care and attention. The consequences of his carelessness were objectively foreseeable and added to his moral culpability in the circumstances.
Nonetheless, the fact remains that the appellant was convicted of careless driving, not dangerous driving causing death (the offence originally charged). There was nothing intentional or wilful about his conduct.
The Crown, having accepted the appellant’s plea to careless driving accepted that his conduct did not constitute a “marked departure” from prudent conduct as is required for dangerous driving.
Although the trial judge referred to mitigating factors we think that he erred in giving insufficient weight to them. The 41-year-old appellant has no criminal or driving record; alcohol played no part in his driving or the accident; the appellant’s pre-sentence report was entirely favorable to him; the appellant had a good work record and was described as a “model citizen”.
In our view, the appellant is at the opposite end of the spectrum from the worst offender in the context of careless driving and this should have been taken into greater account by the trial judge notwithstanding the tragic consequences of the accident to the Hardy family as evinced in the compelling victim impact statements, filed at the time the appellant was sentenced.
The appellant has served 20 days of his custodial sentence. The trial judge correctly noted that an appropriate sentence should be responsive to the principles of general and specific deterrence, protection of the public and the rehabilitation of the appellant.
In our view, if those principles are taken into account and appropriate weight is given to the mitigating factors referred to above and identified by the trial judge, we think that a fit sentence is one of time served. The probation order should remain.
Leave to appeal is granted and the sentence is varied to one of time served. The probation order shall remain.