ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MARC LAURIN Reasons for Sentence Justice K. Crosbie March 16, 2020 Mr. J. Dunda Mr. J. Rybak counsel for the Crown counsel for the defendant 1. Introduction It has been said that sentencing can be one of the most difficult tasks a judge must perform. As Professor Ben Berger stated: “There is perhaps no moment in the work of a judge that is more harrowing and morally demanding than the act of sentencing...” (Ben Berger, “Sentencing and the Salience of Pain and Hope”, Supreme Court Law Review 2, Vol. 70, p. 317-363). In this case, I must sentence Mr. Laurin for driving in a dangerous manner that resulted in someone’s death. He pleaded guilty to this offence and has expressed considerable remorse for taking a life and inflicting considerable emotional pain on the victim's sister, Ms. Kennedy. It must be recognized, however, that no sentence I impose, no matter its length or severity, could ameliorate the loss and sorrow Ms. Kennedy will to endure for the rest of her life. Nothing I can do will be able to fill the void of a lost life.In addition, Mr. Laurin pleaded guilty to breach of trust for paying a friend that he had hired without authorization out of funds from the student-run radio station at the University of Toronto. Counsel agree that the sentence I impose for this offence should not practically increase Mr. Laurin’s sentence. In these reasons, I will explain my thinking process and what has led me to come to the decision I have with respect to the sentence for Mr. Laurin. I have grouped the various factors that have played a part in my analysis into six main categories: The circumstances of the offence; The position of the parties; Mr. Laurin’s circumstances; Sentencing principles and objectives; Aggravating and mitigating factors; and Guidance from other decisions. I will then impose sentence. Submissions on sentencing were heard on February 27". Much has changed in the last two and a half weeks in our country with respect to the covid-19 pandemic. Out of fairness, I asked counsel whether they wanted to make further submissions this morning on whether the current situation should impact the actual sentence or whether I should consider bail pending sentence. In brief, Mr. Dunda opposed the possibility of bail pending sentence. He has serious concern on the primary ground in that Mr. Laurin fled the country after killing Mr. Huffman and it took considerable time before he returned and faced justice. Mr. Dunda also notes that Mr. Laurin has numerous breaches of court orders on his record and has a conviction for being unlawfully at large. Further, Mr. Dunda raised concem with respect to the secondary ground given Mr. Laurin’s extensive and varied criminal record. Further, the Crown has argued that there is no evidence before the court that provincial institutions currently have a case of covid-19 or that they are ill-equipped to deal with that scenario in the future. Mr. Dunda submits the sentence should not be adjusted to account for any concern with this virus and should proceed as planned.Mr. Rybak made two additional submissions. First, he suggests that if Mr. Laurin had not already served a sufficient period of custody to meet the principles of sentencing, that the pandemic is a significant change of circumstances that should result in a mitigation of the term of custody. He asserts that it is a matter of when, not if, the institutions will be impacted by covid-19 and that I should take that into account when I fashion an appropriate sentence, much like I would factor in immigration consequences. Second, and alternatively, Mr. Rybak submits that if I determine Mr. Laurin has not done enough time at this point in time, I should consider bail pending sentence. He argues that conditions can be crafted that will meet the Crown’s concems and that any member of the public, aware of the pandemic and possible implications for those being housed in jails, would be offended if Mr. Laurin was not released. ‘As matters have developed over the last couple of weeks, I have been considering what, if any, impact the pandemic should have on Mr. Laurin’s sentence. I have given this considerable thought, as I have since hearing additional submissions this morning. What to do in response to the pandemic when sentencing a defendant can be challenging and difficult. On the one hand, sentencing principles, such as denunciation and deterrence, must be respected and regardless of the pandemic, Mr. Laurin killed someone and must be sanctioned. On the other hand, I have no hesitation in agreeing with Mr. Rybak that it is a matter of when, and not, if, the jails are affected. It only stands to reason given everything that is happening around us, including the closures of numerous services and institutions. I recognize that Mr. Dunda is correct when he states that the jails will have to respond to this pandemic. Covid-19 might very well become a significant challenge for which institutions must contend. In light of much-publicized reports of questionable, if not disgraceful, conditions at some detention centres in recent times, it gives a sentencing judge pause to consider how the pandemic will play out within their walls. However, one must hope that the gravity of the current pandemic situation and the scrutiny that will be on our jails will ensure that considerable attention is paid to maintaining the health and well-being of inmates.Ihave decided against releasing Mr. Laurin on bail pending sentence. There are simply too many obstacles to releasing Mr. Laurin. Both his record and his flight from the scene leave me very concemed about the primary ground, a concem that is only heighted by his criminal record relating to breaches of court orders and being unlawfully at large. Further, his criminal record is significant, and I am very concemed about the danger his release would pose to the public. Mr. Laurin is without a possible surety and other supports that would alleviate the issues with respect to the primary and secondary grounds. As such, I will proceed to sentence Mr. Laurin. One further note, After submissions on February 27" I indicated I would provide a written copy of these reasons to the parties. I will do so but I will add the caveat that the written reasons may not reflect precisely what I state on the record. There may be minor variations in the manner express a sentence, phrase or word. The official version of my reasons for sentence will be what 1 deliver in court. Circumstances of the offence The facts of the offences are set out in an agreed statement of facts entered as exhibit two. I will not repeat the facts and will instead provide the essence of Mr. Laurin’s actions and consequences. Mr. Laurin was driving his vehicle during the evening of August 102018. As he was approaching accity intersection, he decided he would speed up to beat a yellow light. He entered the intersection when his light was red. He accelerated to a speed of approximately 119 kilometers an hour. The posted speed limit was 50 kilometers an hour. Mr. Huffman entered the intersection on his motoreycle. Mr. Laurin struck him, knocking him off his motorcycle. Mr. Huffman landed on the defendant's hood before landing on the roadway. Mr. Laurin got out of his vehicle and initially remained on scene. However, he then left the scene on foot and went to a friend’s house who lived close-by. A couple of minutes later, he came back to the scene and called 911. He was told that emergency personnel were already on their way. He did not identify himself during that call.‘When Mr. Laurin returned to the scene of the collision members of the public were assisting Mr. Huffman, who had obvious signs of trauma, Mr. Laurin spoke with by-standers and told them that he killed someone. He did not tell anyone his name. ‘Mr. Laurin then left the scene again, He called 911 and this time, he identified himself as the driver who struck the motorcyclist. Mr. Huffman was pronounced dead at the scene. His most significant injuries were to his head and. left leg. A few days later, Mr. Laurin left the country. While out of Canada, he phoned the police and told them that he had struck and killed Mr. Huffman and he provided his name to the police. When he retumed to the country on April 19" he was arrested. He has been in custody since. The position of the parties Crown and defence counsel differ significantly in their respective submissions on the appropriate jail sentence. Mr. Dunda argues that a fit sentence for Mr. Laurin is one of five years in the penitentiary. Mr. Rybak suggests a sentence of 12 to 24 months is adequate to reflect the seriousness of the offence and Mr. Laurin’s circumstances, Both counsel agree that Mr. Laurin is entitled to additional mitigation of his sentence for disturbing pre-trial custody conditions above that of the 1.5 to 1 ratio provided for in section 719 of the Criminal Code. ‘The Crown seeks a 10-year driving prohibition and a DNA order. Mr. Rybak takes no issue with either. Mr. Laurin’s circumstances Mr. Laurin is 31 years old. At the time of this offence, he was attending the University of Toronto to complete a degree in sociology. He also worked at the University’s radio station, the employment context for the breach of trust.Since 2008, Mr. Laurin has amassed a significant criminal record. Without any significant gaps in criminal activity, he has convictions for uttering threats, assaults, several failing to comply with court orders, drug offences, assault cause bodily harm and refusing to provide a breath sample. His, “pattern of lawlessness”, as Mr. Dunda characterized it, is quite concerning. Asaresult of his offences, Mr. Laurin has lost the support of most of his family. His oldest brother is a drug dealer and may have, in part, been responsible for the defendant's initial foray into the criminal justice system. His friends and former girlfriend have essentially ceased contact with Mr. Laurin as a result of these offences. Mr. Laurin finds himself, as Mr. Rybak put it, alone in the world. The time he has spent in pre-trial custody has been quite difficult for Mr. Laurin. I will address the conditions of his detention shortly, but I note the letter he has written demonstrates that he seems to be, as his lawyer put it, “falling apart”. The Centre for Addiction and Mental Health completed an assessment of Mr. Laurin in the fall. The report indicated that Mr. Laurin has symptoms consistent with adjustment disorder and depression. Mr. Laurin also spoke of his struggles with depression and anxiety in his letter he read to the court. Since being in custody Mr. Laurin has been taking medication for anxiety, which appears to be helping. Sentencing principles ‘The law of sentencing obliges me to consider the purpose of sentencing, its principles and its various objectives. ‘The fundamental purpose of sentencing is, in essence, to contribute to respect for the law and the ‘maintenance of a just, peaceful and safe society. The protection of the public is a key consideration in sentencing, ‘The sentence imposed must be proportionate. It should be tailored to the gravity of the offence and the degree or moral culpability of the defendant. This principle is of utmost importance. Primarily, it serves two main functions. First, it ensures that offenders are held responsible for their actions and the harm they have caused. Second, the proportionality principle serves a retraining function. ‘The principle mandates that a sentence not exceed what is just and appropriate, given the moral 6blameworthiness of the offender and the gravity of the offence. In other words, it keeps a check on how much weight can be attached to any one factor or objective (R. v. Nasogaluak, 2010 SCC 6). Turing to the objectives of sentencing, there are a number that I must aim to fulfil through the sentence I impose. Of the objectives the Criminal Code directs me to consider, the following are key for sentencing Mr. Laurin, Frist, I must denounce his unlawful conduct and the harm done to his victim, the vietim’s sister and to society at large. This objective directs me to speak for the community - to communicate society's condemnation of his actions. The sentence I impose must reflect a collective condemnation of his actions which resulted in the tragic loss of life. Second, I must impose a sentence that specifically deters Mr. Laurin and, more generally, members of the public from committing such offences in the future. portance when These two objectives - denunciation and deterrence - are of paramount ii sentencing for offences of dangerous driving. Jail terms are the primary means of fulfilling these objectives (R. v, Invin, 2017 ONSC 4992). Additionally, I must help instill a sense of responsibil in Mr. Laurin and encourage him to acknowledge the harm he has caused to Mr. Huffinan and his sister. I also note that he has caused harm to the community at large. Witnessing such a collision and its aftermath, and assisting Mr. Hufiman, impacts the first responders and the by-standers, With respect to instilling reasonability, I also observe that sentencing is only part of the system that holds offenders accountable. The entire system — from apprehension, prosecution and a finding of guilt - work in tandem with the actual sentence that is imposed to meet this aim. I also note that his acceptance of responsibility goes a long way to meeting this goal. Section 718.2(d) sets out that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and section 718.2(e) calls for a consideration of all available sanctions, other than imprisonment, that are reasonable in the circumstances. Here, counsel agreethat no penalty but incarceration can meet the goals of sentencing and reflect the principle of proportionality. However, the principle of restraint still requires that I impose a term of custody that is no longer than necessary to meet the various goals and objectives. In imposing sentencing, I also must respect the parity principle. Mr. Laurin’s sentence should be comparable to those imposed on similar offenders for similar offences committed in similar circumstances. It is recognized, however, that there will rarely be two offenders from the same background who commit the same offence. Each case must be decided on the relevant factors and circumstances at play. (R. v. Roks, 2011 ONCA 526 at para. 162). While not youthful in the common legal sense, Mr. Laurin is still relatively young. Despite some of the difficulties he faces, which I will discuss shortly, there is still some hope for his rehabilitation, He is articulate and intelligent and while he lacks familial support, he does have potential. Lastly, I must bear in mind any relevant aggravating or mitigating factors that relate to the offence or to the defendant. Aggravating and mitigating factors Generally speaking, aggravating factors are ones that tend to increase the sentence while mitigating factors tend toward a lesser penalty. Aggravating factors The most significant aggravating factor is the tragic loss of life. While Mr. Laurin did not intend to kill Mr, Huffman, he did intend to drive at an excessively high rate of speed — almost 70 kilometres over the posted speed limit - in an attempt to beat the light. And he did so not in a deserted area but in a city intersection. As Justice Forestell commented in Irwin, “[iJn cases like this one, the offender almost never intends the consequences. It is the consequences, however, that, make the offences so serious. The majority of the Supreme Court in Lacasse observed that the objective gravity of offences involving impaired driving causing death or bodily harm is measured more by reference to the consequences of the conduct than by reference to the intention of theoffender (at para. 24). I note, as did Justice Forsestell, that this statement applies with equal force to dangerous driving cause death. The victim’s sister read her victim impact statement to the court. She spoke about her brother. He cared for their elderly mother until she was 99. Their mother died only months before he did. He had just started renovating his house and living his life free of his caregiving duties. He loved his motorcycle, Sadly, his death meant that he and his sister did not have time to deal with issues between them. Losing someone close is very difficult in and of itself. The regret of not saying something or of not having resolved some issue with the deceased can add to that pain and suffering. As Ms. Kennedy explained in her victim impact statement: “...because his life was taken so unexpectedly and so soon after my mother’s passing, we didn’t get a chance to fix anything. I feel so cheated waiting this long to get things straightened out and he was gone”. Mr. Laurin has a criminal record, as already noted. This adds to his moral blameworthiness because he has already been sanctioned, numerous times, for criminal activity and yet he has persisted. The extent of his record also calls into question his commitment to abiding by social rules and living a meaningful, crime-fee life. ‘Mr, Laurin has a prior driving related offence on his record. Refusing to provide a breath sample is a driving related offence, Placed as it is in the Criminal Code and given the context refusals, ‘occur ~ that of driving ~ I respectfully disagree with Mr. Rybak that it should be seen as an offence involving opposition to authority. However, that entry does not mean that Mr. Laurin drove in that, instance dangerously or even poorly. I also note that there is no evidence of any prior Highway Traffic Act offences Mr. Laurin also left the scene of the collision and days later left the country. He did not plead guilty to a charge of failing to remain but I can consider the overall context of the offence. Counsel does not suggest otherwise. Mr. Rybak points out that Mr. Laurin’s conduct was not the typical post-offence conduct seen in cases involving failing to remain. To begin, Mr. Laurin did initially stop and get out of his vehicle. By the time he collected himself, people were already providing assistance to Mr. Huffman. This is not the situation in which he fled the scene knowing that the vietim was not receiving any assistance.Further, Mr. Laurin did not go very far when he initially left the scene and he returned shortly thereafter. He called 911 twice and he told by-standers that he killed someone. Subsequently, he called the police and on the second call he identified himself as the perpetrator. However, Mr. Laurin did leave the country after and knowing that Mr. Huffman had died. He prolonged the pain that Ms. Kennedy and the community endured without resolution to this matter. Taccept Mr. Laurin was fearful and erratic when he saw what he had done. However, we demand that a driver who causes injury or death remain at the scene, whether they are calm, or whether they panic. The fact he did not try and evade being identified does go some distance to mitigate the worsening of the situation, but his actions are still properly characterized as aggravating. Mitigating factors Mr. Laurin has accepted responsibility for his actions and has expressed deep and genuine remorse. He submitted a letter to the court outlining his regret at what he has done and the torment he suffers, from having to live, for the rest of his life, with having killed someone. He has contemplated suicide and does not think there will ever be a day when he will not feel shame and self-loathing. It would be an injustice to try and summarize the letter he wrote and read aloud. Suffice it to say that it was heartfelt, and it is clear to me that Mr. Laurin has significant insight into the grave consequences of his actions, the incredible pain he has inflicted and the numerous challenges he faces going forward. ‘Undoubtably, there will be few days, in any, ahead in Mr. Laurin’s life when he does not think of what he did. This, in my view, will go a long way to meeting the aim of specific deterrence, especially when coupled with his genuine remorse. I hope that this insight helps ensure that Mr. Laurin stops himself from doing anything in the future that involves such brazen and utterly unnecessary risk that would put the public, and himself, in danger. In pleading guilty and forgoing his constitutional right to a trial, Mr. Laurin saved court resources and more importantly, the victim’s sister from the prospect of sitting through a trial. 10Mr. Laurin has been in custody since April 19" 2019. As noted earlier, counsel agree that Mr. Laurin is entitled to mitigation of his sentence due to harsh pre-trial custody condition above the 1.5 to one ratio usually afforded under section 719(3.1). (R. v. Duncan, 2016 ONCA 754 and Rv Brown, 2020 ONCA 196). Justice Schreck recently explained the justification and legal authority for awarding additional credit. He stated: It is now well established that particularly harsh presentence incarceration conditions can justify credit beyond the ordinary credit for presentence custody .... This follows from the principles of individualization, parity and proportionality. Where an offender has been subject to particularly harsh presentence custody, he has been subject to consequences resulting from the offence that have a more significant impact on him. Like collateral consequences such as immigration consequences, this additional impact must be considered to ensure that the sentence is proportionate and tailored to the individual circumstances of the offender: [citations omitted] Submissions for additional credit are becoming more and more common. Indeed, numerous jurists, have commented recently about the abhorrent conditions inmates are being subjected to at the East and South detention centres. A ter reviewing several cases in which judges have expressed concen about the living conditions defendants face while awaiting trial, Justice Schreck adopted the “various descriptions ...used to describe the situation at the TSDC” and said: “It is, to use their words, unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable.” (Persad, at para.31) Mr. Laurin wrote a letter that was submitted to the court in support of his request for additional credit. In it, he described, for example, numerous lockdowns, long periods of segregation, ill- treatment by correctional officers, refusals of common necessities of life, including food and medical attention, and disturbing assertions of feces-filled cells. It would be preferable, of course, if pre-trial custody conditions were not such that they can be described as deplorable and inhumane. As Justice Schreck noted, deducting time from the overall sentence a defendant is to serve is far from the ideal. He explaine: As outlined earlier, the principles of individualization, parity and proportionality will in some cases require that extra credit be given to inmates who have endured harsh conditions in presentence custody. This is not an optimal solution and one that does not come without ucosts, Ideally, offenders should serve as much of their sentences as possible in correctional institutions where they have the benefit of rehabilitative programs tailored to their individual needs rather than be warehoused in detention centres. This maximizes the rehabilitative potential of the offender, which benefits not only the offender, but society as, a whole, as an offender who is rehabilitated is less likely to reoffend once released. It follows that where the application of sentencing principles requires a court to attribute a greater proportion of the sentence to the period spent in presentence custody, the offender's potential for rehabilitation is compromised and the risk of harm to the community increases (Persad, para. 32). During a judicial pre-trial with counsel I indicated that I have wondered about enhanced credit above that of 1.5 given how section 719 (3.1) is worded. Specifically, the section states that the maximum credit is 1.5 to one. I indicated, however, that in my view, it is clear, at least since Duncan, that harsh conditions can impact the overall fitness of sentence. In other words, like credit for harsh pre-trial bail or police misconduct, time can be deducted from the sentence that would have been imposed in recognition of such circumstances. Counsel agreed that regardless of the ‘method, enhanced credit should be given in this case. Absent submissions on which stream to best situate the mitigation, I opt here to deduct a certain amount of time from the sentence that I would have imposed as mitigation for harsh pre-trial conditions. In consideration of what Mr. Laurin has suffered while awaiting sentencing for the last year or so, I will deduct an additional nine months from the overall sentence I impose. Guidance from other decisions In support of their submissions both counsel provided a number of cases for examination. As with all case comparisons, there are similarities between the offence and the offenders - and differences. No two cases are the same in terms of the facts or the offender. As is often said, sentencing is a human process in which no offender is precisely the same and every case has its own unique features. As Chief Justice Lamer put it, “[sJentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction”. (R. v. M, (C.A.), [1996] 1 $.C.R. $00) Further, I recognize that sentencing ranges are merely guidelines, and are just “one tool among others that are intended to aid trial judges in their work” (R. v. Suter, 2018 SCC 34 at para. 25 and 12Rv, Lacasee, 2015 SCC 64 at paras. 56 to 60). The case law stresses that sentencing is a highly individualized exercise, one which requires the judge to “engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them” (R. v. Ipeelee, 2012 SCC 13, at para. 75; and R. v. Pham, 2013 SCC 15). In other words, a sentencing judge must have “sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender” (Ipeelee, at para. 38) ‘Moreover, the range of sentence for dangerous driving causing death is very broad and somewhat difficult to establish (R. v. Kirkpatrick, 2018 ONCJ 208 at para. 19). This offence can be committed in myriad ways, some more egregious than others, and an offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors at play. I observe, however, that sentences for this type of offence have increased in severity in recent years in recognition of the need to meet the principles of denunciation and deterrence. For the purpose of these reasons, I will not recite the facts, varying factors and sentences imposed in the cases counsel provided for my review. I have considered each of the cases submitted and I am very thankful for counsel for providing those cases. They have been of great assistance. Mr. Rybak submitted that many of the aggravating factors present justifying higher sentences are absent in this case. For example, there is no evidence in this case of a prolonged period of dangerous driving, nor is this a case of Mr. Laurin racing someone or showing off for a friend. Further, there is no indication that alcohol was a factor. I also note that Mr. Laurin was properly licenced and insured. Of course, the fact that an aggravating factor does not exist does not make it a mitigating factor. It simply means that the sentence should not, on that basis, be heightened. 1 also note that some of the cases the defence submitted in support of the sentence he suggested include mitigating factors not present in this case, such as the offender having no prior criminal record. 3Sentence to be imposed The gravity of Mr. Laurin’s actions and his moral blameworthiness is considerably high. He consciously took a totally unnecessary risk that resulted in Mr. Huffman’s death. The consequences of his actions are tragic. The question that remains is how much time should Mr. Laurin spend in custody. As 1 have explained, the overall punishment must be proportionate to the grave harm Mr. Laurin has caused and his high degree of moral culpability. The sentence must also reflect due consideration of the relevant sentencing principles and objectives and must be the result of a fair weighing and balancing of material aggravating and mitigating factors. | want to stress again that no sentence, no matter its length or severity, could ameliorate the fact, that Mr. Laurin caused Mr. Huffman’s death. No sentence can make up for the loss of life, the years that Mr. Huffman could have enjoyed, and it cannot attempt to measure the value of Mr. Huffman’s life. The sentence I impose also cannot take away the pain and anguish his sister is experiencing. As I have endeavored to explain throughout my reasons, a sentencing decision is bom of several factors and considerations. T have also considered, in addition to the principles, factors and circumstances I have already reviewed, that it would be in Mr. Laurin’s best interests to have a term of probation attached to his sentence. I will do so and for the maximum available, three years. As I said earlier, I remain hopeful that Mr. Laurin can make the changes he needs to in his life. I have no doubt he is capable of that. But he is without the familial support he should have - and I want to make sure he has - some support in terms of counselling. At the end of these reasons, I will indicate the terms I intend to impose and also seek submissions of counsel on any terms they may request. 1 am also mindful when determining the length of custody that I am imposing a lengthy driving prohibition as part of Mr. Laurin’s punishment. Driving prohibitions, as well as jail, help meet the principles of deterrence and denunciation, and they serve to protect the public. I will impose a prohibition of 10 years. This period will commence at the end of the period of imprisonment (R. v, Lacasse, 2015 SCC 64 at para. 109). 14The jail sentence to be imposed for the count of dangerous driving is three years. In relation to my carlier comments about the pandemic, should I have determined that a fit sentence required only a few months more of custody to meet the goals of sentencing, I would have had little hesitation in reducing the sentence to reflect time served, However, in my view, after much thought and deliberation, a fit sentence is one of three years. From that time, I will deduct nine months to account for the harsh pre-trial custody conditions. ‘That leaves 27 months. From this period credit for pre-trial custody under section 719 will be credited. As of today’s date, Mr. Laurin has been in custody for 333 days, or 11 months. I understand 40 of those days were attributed to a recent conviction for being unlawfully at large. ‘That leaves 293 real days he is to receive credit for and at an enhanced rate of 1.5 to 1 that amounts to 440 — about 14.5 months. As such, Mr. Laurin will serve an additional 12.5 months in custody. For the breach of trust, I will impose a 90-day jail term to be served concurrently. 15