ONTARIO COURT OF JUSTICE IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990 Her Majesty the Queen V. Timothy Kelleher
ONTARIO COURT OF JUSTICE
IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990
Her Majesty the Queen
V.
Timothy Kelleher
* * * * * * * *
Reasons For Judgment
Justice of the Peace Kevin V. Madigan
February 20, 2009
1530 Markham Road, Toronto, Ontario
* * * * * * * *
Charge: s. 140(2) – Highway Traffic Act –
Failure To Yield To Pedestrian In Crossover
* * * * * * * *
Appearances:
Mr. A. Smith Provincial Prosecutor
Mr. R. Clarke Agent for the Defendant
Mr. T. Kelleher Defendant in Person
TTC Bus Driver Charged Under Section 140(2) of Ontario’s Highway Traffic Act-Prosecution Alleging Driver Failed To Yield To Pedestrian In Crossover-Pedestrian Killed In Crossover
Proper Classification of Offence-Whether Statute Creating An Offence of Strict Liability or Absolute Liability-Court Determining That Offence One of Absolute Liability-Enumeration & Application of Factors Determining Proper Classification
Prosecution Required To Prove Prohibited Conduct Only-Prosecution Entitled To Conviction Upon Proof That Defendant Committed Prohibited Conduct
Defence of Due Diligence Not Available To Defendant-Evidence From Driver of Due Diligence or Reasonable Care Irrelevant-Defendant Testimony That He Followed His Professional Training Not Relevant To Determination of Whether Driver Committed Offence
TTC Driver Disputing That Pedestrian Had Properly Entered Crosswalk-Expert Evidence Provided By Accident Reconstructionist-Accident Reconstructionist Establishing Conclusively That Pedestrian In Crosswalk When Struck
TTC Driver Claiming To See Darkly Dressed Pedestrian Enter Crosswalk At Last Minute-Driver Made Intentional Decision Not To Brake Abruptly After Seeing Pedestrian Unexpectedly Enter Crosswalk-Driver Concerned About Injury To Bus Passengers-Defence of Necessity Not Formally Raised By Defence-If Defence of Necessity Had Been Raised, Defence Unlikely To Satisfy All of the Conditions Necessary To Establish Defence
Sentencing Considerations-TTC Driver Failing To Yield To Pedestrian-Killing Pedestrian In Crosswalk-Driver Deciding Not To Try To Stop For Pedestrian Unexpectedly Entering Crosswalk-Concern For Safety of Bus Passengers-Whether Decision Qualifies As A Mitigating or Aggravating Circumstance
Sentencing-Court Seeking To Impose Sentence Which Reflects Circumstances of Offence & Circumstances of Offender-Need To Address Aggravating & Mitigating Circumstances-Serious Safety Violation Causing Fatality Requiring Denunciation, Deterrence & Protection of the Public
Setencing of Professional, Safety-Conscious Driver With Good Record-Driver Genuinely Remorseful-No Need For Specific Deterrence or Rehabilitation-Driver Unlikely To Commit Same or Similar Offence In Future-Driver Suffering From Post Traumatic Stress Disorder After Causing Accident & Fatality
Introduction
This prosecution required two days of trial. Oral judgment was rendered and sentence imposed on December 3, 2008. At that time, I promised the parties that I would provide them with written reasons for judgment. These are my written reasons. Note that the appeal period commences as of the date of these written reasons, i.e. February 20, 2009.
This is a prosecution under section 140 of Ontario’s Highway Traffic Act [See Appendix for the relevant portion of the statute]. The defendant is alleged to have violated section 140(2) of the Act by failing to yield the right of way to a pedestrian in the crossover.
At the time of the alleged offence, Mr. Kelleher was driving a TTC express bus, northbound on Kipling Avenue just south of Dixon Road, at approximately 5:00 pm on Monday November 28, 2005. On this occasion, Mr. Kelleher’s bus struck and killed a pedestrian [Mr. Han] who had just entered the crosswalk.
The Issues In This Case
Much, but not all, of the prosecution’s case was either conceded or not disputed by the defence. For greater clarity, the defence did not dispute the date, time, location and general circumstances alleged by the prosecution in its presentation of this case.
For the purposes of the motion for non-suit , the defence did not concede that identity had been established by the prosecution evidence. However, after the motion for non-suit was considered and denied, the defence effectively conceded that Mr. Kelleher was indeed the driver operating the bus which struck and killed the pedestrian Mr. Han.
There were several issues concerning which the parties disagreed. First, perhaps the most important issue in dispute was the proper classification of the offence alleged. Second, the defence disputed the prosecution contention that the pedestrian was properly in the crossover when he was struck and killed by Mr. Kelleher’s TTC bus. Third, the defence claimed alternatively that the defendant was not obligated to stop [since the pedestrian was not properly within the crossover] and that, once the pedestrian unexpectedly entered the crossover, the defendant could not have stopped in the circumstances [had he stopped he would have risked injury to his TTC passengers].
The Dispute Respecting Classification of This Offence
At the commencement of these proceedings, disagreement arose about the classification of the offence alleged in the information. The prosecution contended that the charge alleged an absolute liability offence. The defence argued that the charge alleged an offence of strict liability. Although the parties submitted different classifications for this offence, they did agree that the statute was public welfare legislation[1] intended to promote safety.
What is the difference between absolute liability offences and strict liability offences[2]. Further, what difference does the distinction make to the outcome of this case? Proper classification of an offence is crucial. First, it determines what the prosecution must prove. Second, it determines what defences are available to the defendant.
Absolute liability offences require the prosecution to prove, beyond a reasonable doubt, only the conduct prohibited by the law. The proscribed conduct is specified, and sometimes defined, by the statute pursuant to which the charge was laid. The prosecution need not prove any mental element or fault, on the part of the defendant, in addition to the proscribed conduct. Conviction follows immediately upon the trier-of-fact finding that the proscribed conduct has been proven beyond a reasonable doubt.
Strict liability offences also require the prosecution to prove only the conduct proscribed by law. As in the case of absolute liability offences, the prosecution need not prove any mental element or fault. For strict liability offences, conviction must follow upon proof of the prohibited conduct unless the defendant can disprove negligence. This means the defendant must be able to establish, on a balance of probabilities, either the defence of due diligence or the defence of reasonable mistake of fact.
The defences of due diligence and reasonable mistake of fact are really two sides of the same coin. Due diligence simply means that the defendant took all reasonable measures in the circumstances to avoid commission of the prohibited conduct. Reasonable mistake of fact simply means that the defendant honestly and reasonably believed in a state of affairs which, if true, would exonerate him, i.e. permit him to avoid liability.
For the prosecution, Mr. Smith contended that, even if the offence was determined to be one of strict liability, the evidence adduced by the defence did not establish either the defence of due diligence or the defence of reasonable mistake of fact.
Pending my ruling on the classification of this offence, I permitted Mr. Clarke to adduce evidence of due diligence on the part of Mr. Kelleher. Before hearing the evidence of the defendant, I reminded Mr. Clarke that some of the defendant’s testimony might be rendered irrelevant by my ultimate ruling on the classification issue. In other words, although all parties proceeded on the assumption that the offence was one of strict liability, I reminded the defence that evidence of due diligence would be irrelevant if I were to rule that the offence alleged was one of absolute liability. For the record, I was not able to rule on the classification issue until I rendered my oral judgment on December 3, 2008.
Resolving The Classification Issue
In arguing that this charge alleged an offence of strict liability, Mr. Clarke began by citing the presumption[3] that public welfare offences are strict liability offences. Further, Mr. Clarke also cited the decision of the Nova Scotia Court of Appeal in R. v. Davis 1996 NSCA 61 (CanLII), [1996] 148 N.S.R. 68 which held that the equivalent Nova Scotia statute created an offence of strict liability, not absolute liability. Finally, Mr. Clarke submitted the recently-decided judgment of the Ontario Court of Appeal in R. v. Kanda 2008 ONCA 22 (CanLII), [2008] 233 O.A.C. 118.
For the prosecution, Mr. Smith contended that the Ontario legislation created an offence of absolute liability, not strict liability. In support of his position, Mr. Smith submitted the reasoning of the Ontario Court of Appeal judgment in R. v. Kurtzman 1991 CanLII 7059 (ON CA), [1991] 50 O.A.C. 20. Although this decision did not directly address the charge of fail to yield to a pedestrian, it did conclude that the offence of failing to stop at a red light [a similar but not indentical charge] was an offence of absolute liability. Mr. Smith’s opinion was that the Kanda case was only marginally relevant since it addressed a seatbelt violation and not a charge of failing to stop one’s vehicle in specified circumstances.
In my opinion, the judgment of the Nova Scotia Court of Appeal in the Davis case is not particularly helpful in assisting me in classifying the offence with which Mr. Kelleher is charged. Although the charge addressed in that judgment is virtually identical to the offence alleged against Mr. Kelleher, the reasoning of the Nova Scotia Court of Appeal is not well-articulated. The reasoning is not well-articulated precisely because the prosecution had conceded that the Nova Scotia statute created an offence of strict liability. Thus, given that all-important concession, there was little meaningful discussion of the determinants of classification and how a court should apply the criteria to the legislation in question.
Obviously, given the dispute between the prosecution and defence concerning classification of the offence with which Mr. Kelleher is charged, the Davis case contributes little to the resolution of this important issue. Of greater relevance is the Ontario Court of Appeal judgment in Kanda. Although the offence addressed in that decision was a seatbelt violation, the reasoning of the Ontario Court of Appeal in Kanda at least provides a meaningful discussion of the criteria to be used in classifying offences.
Both R. v. Kurtzman and R v. Kanda agree that the Supreme Court of Canada authoritatively established the relevant criteria for determining the classification of offences in R.v. Sault Ste. Marie (1978) 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353. These two Ontario Court of Appeal judgments reiterate the Supreme Court’s poition that whether the presumption of strict liability has been displaced will depend upon consideration of the following four factors:
- the regulatory pattern adopted by the legislature;
- the subject matter of the legislation;
- the importance [severity] of the penalty;
- the language of the provision.
Each of the judgments in Kurtzman and Kanda then proceed to apply the Supreme Court of Canada criteria to the legislation addressed in each of those two cases.
Although it was Mr. Clarke who cited the Kanda decision for the defence, the Kanda judgment does not persuade me that the offence with which Mr. Kelleher is charged is an offence of strict liability. Even though the general discussion in Kanda is very helpful, the dissimilarity between seatbelt violations and failure to stop violations renders the case of limited assistance. In my view, the Ontario Court of Appeal judgment in Kurtzman is sufficient to resolve the classification of the offence alleged in the case before me.
In Kurtzman, the judgment of the Court was delivered by Justice Tarnopolsky. I do not propose to do an extensive analysis of the reasoning of Justice Tarnopolsky in Kurtzman. I will limit my comments to the reasoning most pertinent to the resolution of the classification of the offence with which Mr. Kelleher is charged.
While applying the classification criteria to the charge of failing to stop for a red light in Kurtzman, Justice Tarnopolsky commented that: “…either [one] stops the vehicle or…not”. In other words, there is no way qualification on the obligation to stop. These comments are related to other, similar comments which he makes later in the judgment where Justice Tarnopolsky noted that the statutory wording of the provision in Kurtzman did not anticipate the defence of due diligence. The legislation mandates compliance and does not invite the exercise of judgment or reasonable care[4].
Indeed, this is also the case with the statutory provision that Mr. Kelleher is accused of violating. Section 140(2) mandates that motorists yield to pedestrians in crosswalks in specified circumstances. A driver is obligated to stop for a pedestrian in a crosswalk whenever that pedestrian’s safety would be endangered by a vehicle failing to stop. This is a requirement, not a recommendation. Section140(2) does not invite the exercise of judgment or reasonable care, but obedience, on the part of the driver. Very simply, section 140(2) reasonably presumes that the driver is able to readily observe that failure to stop would endanger the safety of the pedestrian and mandates that the driver stop in such circumstances.
With respect to the subject-matter of the legislation he was considering in Kurtzman, Justice Tarnopolsky mentioned the need for “strict compliance for the purposes of safety”. Given that “the apparent object of the Highway Traffic Act is the safe and orderly conduct of traffic on public roadways”, the potential for personal injury and/or death tends to suggest that certain Highway Traffic Act provisions are so fundamental to the promotion of safety that they should be interpreted as creating offences of absolute liability. The more direct the relationship between the statutory requirement and the promotion of safety, the more likely the provision creates an offence of absolute liability. I endorse this position wholeheartedly, especially in a case like this, where disregard of the safety legislation could result in a fatality.
In my view, the directness of the relationship between the statutory requirement in section 140(2) and the promotion of safety is particularly compelling in determining the proper classification of the offence with which Mr. Kelleher is charged. Ontario’s Highway Traffic Act reasonably and properly presupposes that properly qualified motorists will have control over their vehicles and be able to stop when and where safety requires them to do so. However, it is also significant that the statutory wording does not invite the exercise of reasonable care and does not seem to anticipate the defences of due diligence or reasonable mistake of fact.
According to Justice Tarnopolsky, the nature and severity of the penalty also bears upon classification of the offence. In general, the less onerous the penalty, the more easily the statutory provision can be characterized as creating an offence of absolute liability. This is consistent with the comment of Justice Dickson in R. v. Sault Ste. Marie that, in general, “…punishment should…not be inflicted on those without fault…”. If convicted, Mr. Kelleher would face a minimum fine of $150, a maximum fine of $500, and the imposition of demerit points. However, he would not be liable to suspension of his driver’s licence or any other, more serious penalty such as jail[5]. Further, to once again borrow the words of Justice Tarnopolsky, there would be “little, if any, stigma” attached to conviction under section 140(2).
As discussed by Justice MacPherson in Kanda, the overall regulatory pattern of the Highway Traffic Act is neutral with respect to classification of a Highway Traffic Act offence. This was also mentioned by Justice Tarnopolsky in Kurtzman. Ontario’s HTA creates mens rea offences, strict liability offences, and absolute liability offences. Ontario’s legislature is familiar with the language necessary to create each of the three kinds of offences. In my view, had the legislature wished to make failure to yield to a pedestrian an offence of strict liability, it could easily have done so by employing statutory language which mentioned due diligence or reasonable care.
In the absence of statutory language anticipating the defence of due diligence, I am confronted with the use of the imperative “shall” which suggests an offence of absolute liability[6]. The duty imposed on the driver is to stop his vehicle in specified circumstances. Whether the specified circumstances have arisen is readily observable to an alert, safety conscious motorist who is properly deemed to be in control of his vehicle.
After careful consideration of the four classification criteria specified in the authorities, I conclude that section 140(2) of the Highway Traffic Act creates an offence of absolute liability. Thus, if the prosecution can successfully prove the prohibited act beyond a reasonable doubt, conviction must follow immediately. Mr. Kelleher cannot avoid conviction by adducing evidence of due diligence or lack of fault.
THE CASE FOR THE PROSECUTION
Prosecution Theory
Based upon my interpretation of the statute and the evidence presented, there were two independent ways in which Mr. Kelleher could have violated section 140(2) HTA. First, he could have violated the section by simply failing to stop at the crossover when there was a vehicle stopped at the crossover. Second, he could have violated the section by failing to yield to a pedestrian in the crosswalk.
Throughout these proceedings, the prosecution was alleging failure to yield to a pedestrian in a crosswalk. In other words, the prosecution did not seek conviction for simply failing to stop at the crosswalk because a vehicle was stopped at the crosswalk. Given that the prosecution never advanced the alternative theory of liability, I have confined my decision to consideration of whether Mr. Kelleher failed to yield to a pedestrian in the crossover.
Eyewitness Testimony
In presenting its case against Mr. Kelleher, the prosecution adduced the evidence of several eyewitnesses.
Ms. Nicole Colacci was a passenger standing at the front of the bus just behind Mr. Kelleher. Due to the dark clothing worn by the pedestrian, it was initially difficult for her to see the pedestrian. When Ms. Colacci first saw the pedestrian at the crosswalk, he seemed to be holding something while waiting. However, she stated her impression that he intended to enter the crosswalk.
She witnessed the pedestrian, Mr. Han, look left and right before quickly stepping into the crosswalk where he was struck and killed. Just before Mr. Han entered the crosswalk, she had heard the driver comment that he didn’t think the pedestrian was intending to enter the crosswalk.
According to Ms. Colacci, the bus had been traveling a little faster than “normal”. Although she could not estimate the speed, she was certain that she did not feel the bus attempting to brake.
Mr. Paul Caggianello was travelling northbound on Kipling in the passing lane [lane #1] approaching the crosswalk where this accident occurred. Although he was several hundred feet away from the crosswalk, he could see the crosswalk lights flashing and he began to slow his vehicle in anticipation of stopping at the crosswalk. Mr. Caggianello was certain that there was a vehicle stopped ahead of him in the passing lane right at the crosswalk. Further, there was another vehicle directly in front of him which was also slowing.
Just as Mr. Caggianello was about to stop his vehicle, the TTC bus passed in the curb lane. This witness described the bus proceeding with “full power”. When giving his testimony on this point, Mr. Caggianello unequivocally conveyed the impression of the bus traveling at high speed. In fact, he volunteered his opinion that, at the speed the bus was going, it could not have stopped even if the bus driver had tried.
Mr. Caggianello indicated that he himself never observed any pedestrian in the crosswalk at any time before the accident. Although he indicated that it was dark, he did mention that the crossover was well lit by artificial lighting.
Witness Martin Murchie was located in the parking lot of a nearby video store. He was called to confirm that, after hearing a loud noise, he observed a human body flying through the air. He also indicated that he had tried to perform first aid on the injured pedestrian.
For the record, in evaluating the evidence of the prosecution eyewitnesses, I was satisfied that each of the witnesses endeavoured to provide testimony which was truthful and helpful. All of the witnesses were sincere and all attempted to answer all questions to the best of their ability, given their limited perspectives of this occurrence. I had no reason to doubt or disbelieve the substance of their evidence.
The Testimony & Report of The Collision Reconstructionist
The collision reconstruction report was prepared by Officer Shawn Markle. He has special training and expertise as an investigator of traffic accidents and is qualified as a collision reconstructionist. Without objection from the defence, his evidence was treated as expert evidence.
Officer Markle’s collision report was based upon the information provided by eyewitnesses and upon observations and measurements taken at the accident scene. It was received as an exhibit in these proceedings. In referring to the expert evidence of Officer Markle, I sometimes refer to his in-court testimony and sometimes refer to the contents of his report.
Officer Markle described the relevant portion of roadway where this accident occurred. He indicated that the speed limit for the relevant portion of roadway was 60 kph. He also provided certain measurements of the accident scene. Further, he attested that the pedestrian crosswalk is well it with artificial lighting and that the crosswalk lights were functioning properly on this occasion.
According to the reconstructionist, Mr. Kelleher’s bus struck the pedestrian [Mr. Han], while Mr. Han was located in the curb lane of the crosswalk [lane #2]. All of the evidence, considered by Officer Markle, indicated that Mr. Han was indeed in the crosswalk at the time he was struck. Further, there was no evidence to suggest that Mr. Han’s body was anywhere other than within the crosswalk at the point of impact.
Apparently, Mr. Han’s body was struck by the right, front corner of the bus. Upon impact, Mr. Han’s body became airborne. After causing damage to the right front windshield, Mr. Han’s body travelled down the right side of the bus while the bus was still moving. While doing so, the body left “cleaning” marks on the right side of the bus. Eventually, Mr. Han’s body came to rest a short distance behind the bus after it had been brought to a stop. From point of impact until final resting location, Mr. Han’s body travelled approximately 34 metres. Mr. Han died from his injuries.
Due to Mr. Kelleher’s admitted failure to try to stop his bus, there were no skid marks which the reconstructionist could use to try to calculate the bus speed at impact. However, Officer Markle also indicated that, once Mr. Kelleher did eventually apply the brakes, it took him 49 metres to stop his bus.
Although he could not perform any calculations to determine the minimum speed of the bus [since there were no skid marks], Officer Markle was certain that this was not a “low speed impact”. A “low speed impact” is one which occurs when the speed of impact is less than 50 kph. Based upon his expertise and experience, the officer was certain that the speed of this impact must have been greater than 50 kph.
The high speed of this impact was attested by the distance it took Mr. Kelleher to stop his bus, once he applied his brakes, and by the height of the “cleaning effect” of Mr. Han’s body as it traveled down the right side of the bus. In general, the higher the body’s “cleaning effect on the side of the bus, the faster the speed of the vehicle.
In determining the liability of Mr. Kelleher for the offence alleged. I have placed great weight on the findings and conclusions of Officer Markle’s testimony and collision report. I am well aware that much of this report was based upon the accounts of eyewitnesses with limited perspectives. However, given that Officer Markle’s expert status and expert evidence were not directly challenged or impeached, I have no reason to doubt or disregard his findings and conclusions. Officer Markle performed well in the witness box and attempted to answer all questions, especially those posed by the defence and by me, forthrightly and helpfully. Ultimately, his expertise and experience did greatly assist me in determining whether Mr. Han had entered the crosswalk and, consequently, whether Mr. Kelleher had failed to yield to Mr. Han.
Defendant Statement Not Adduced
Although a statement was taken from the defendant by the investigators at the accident scene, after some consideration, Mr. Smith decided not to try to enter the statement.
THE CASE FOR THE DEFENCE
In this case, the defence employed several alternative strategies in responding to the charge. Mr. Clarke’s first strategy was to bring a motion for non-suit which was denied. His second strategy was to deny that the defendant was under any obligation to yield to the pedestrian in these circumstances. This was based on the claim that the pedestrian had not properly entered into the crossover and, thus, the statutory precondition for the obligation to stop did not arise. Finally, in the belief that the statute created an offence of strict liability, the defence adduced evidence in an attempt to establish due diligence on a balance of probabilities.
Cross-Examination of Prosecution Witnesses
In the course of the defence, Mr. Clarke cross-examined the prosecution witnesses. The cross-examination was oriented towards gaining helpful concessions from eyewitnesses respecting circumstances and conditions facing Mr. Kelleher. For instance, the various witnesses confirmed that road conditions were dark and wet and that the pedestrian Mr. Han was indeed wearing dark clothing which might have made him difficult to see. It was also conceded that artificial light was needed. However, despite these minor concessions by the various witnesses, the credibility of these witnesses was not undermined and the substance of their evidence was not changed.
Section 140(4) Invoked
At one point during presentation of the defence, Mr. Clarke invoked section 140(4) of the Highway Traffic Act. This section imposes an obligation on a pedestrian intending to access a crosswalk. To paraphrase section 140(4), the obligation is not to create a situation of danger by moving oneself into the path of a vehicle without giving the motorist sufficient time to yield to the pedestrian in the crosswalk. Mr. Clarke argued that Mr. Han had suddenly and unexpectedly entered the crosswalk at the last moment after having led Mr. Kelleher to honestly and reasonably believe that he would not enter the crosswalk. Essentially, the defence was claiming that the pedestrian had walked into the moving bus.
To the extent that this could be considered evidence of reasonable mistake of fact, this point was simply irrelevant. As mentioned previously, because section 140(2) creates an offence of absolute liability, the defences of due diligence and reasonable mistake of fact are simply not available to Mr. Kelleher.
Alternatively, Mr. Clarke advanced a statutory defence by arguing that the failure of the pedestrian to properly access the crosswalk effectively excused Mr. Kelleher from any obligation to stop. This rather technical interpretation of the obligation in section 140(2) was rejected for the following reasons. Such an interpretation would tend to encourage disputes between motorists and pedestrians about their respective obligations. My view was that sections 140(2) and 140(4) created independent obligations on motorists and pedestrians. Whether or not the pedestrian was discharging his obligation was irrelevant to the obligation on the motorist to yield. Whenever a trial court is confronted with more than one possible interpretation of safety legislation, the court must prefer the interpretation which is most likely to promote the safety which was the aim of the statute[7]. My interpretation seems more likely to focus the parties’ attention on their own respective obligations rather than causing them to concern themselves with what other parties were doing or failing to do.
Evidence of Due Diligence
Pending my resolution of the classification issue, Mr. Kelleher was permitted to provide testimony which effectively sought to establish the defence of due diligence. However, given my ultimate determination that the charge alleged an offence of absolute liability, his evidence of due care and attention to road conditions and his training was simply irrelevant to my determination of his liability.
Defence of Necessity Not Formally Advanced
Although the defence of necessity[8] was suggested by certain portions of Mr. Kelleher’s testimony, this defence was not formally advanced by Mr. Clarke. More precisely, there was no argument on the application of this defence to the circumstances of Mr. Kelleher’s case. No caselaw authorities[9] were submitted and there was no mention of the defence, by either party, in final submissions.
Further, even though the defence did discharge the evidential burden to advance some evidence to support the defence, whether that evidence was sufficient to shift the burden to the prosecution to disprove necessity is doubtful. In my view, the evidentiary foundation for the defence was insufficient to enable me properly determine whether the requirements of the defence had been satisfied.
The Testimony of Timothy Kelleher
Mr. Kelleher commenced his testimony by confirming that he had been employed as a bus driver with the TTC since October 2002. Further, he described his training and qualification as a TTC bus driver. While completing his professional training to become a TTC bus driver, he obtained the highest score for the Ministry of Transportation tests in his TTC class.
At the beginning of his testimony, the defendant described the bus he was driving on the occasion in question. It was a 7300 series bus known as a Low Floor Flyer. This bus is 40 feet long and over 20 tons in weight. It has a seating capacity of 38 and is wheelchair accessible. Mr. Kelleher made the point that it is a vehicle which travels so close to the curb that there had been some TTC concern that someone may sometime be hit by the right side mirror.
On the date of this accident, Mr. Kelleher’s bus was being operated as an express bus during rush hour. The defendant had driven this route many times and was very familiar with the bus and the route. Although he was slightly behind schedule, Mr. Kelleher was adamant that he would suffer no repercussions from his superiors since safety was the first priority for the TTC.
In describing the weather conditions, Mr. Kelleher claimed that it was pouring rain and especially dark. Although the relevant portion of roadway has a speed limit of 60 kph, the defendant estimated his speed to be approximately 45 kph. Apparently, it is standard operating procedure for TTC buses to travel at 10 kph below the speed limit which, in this case, was 60 kph. According to Mr. Kelleher, he was traveling a little slower than that due to the bad weather conditions.
On this occasion, Mr. Kelleher’s bus had a “full standing load”. In other words, the bus was operating at virtually full capacity. [This factor caused Mr. Kelleher to apprehend that any attempt, to try to stop his bus to avoid striking Mr. Han, would endanger passenger safety.]
While travelling northbound on Kipling Avenue in the curb lane [lane #2], Mr. Kelleher was following his professional training by methodically and repeatedly checking his mirrors. He was attempting to keep track of all vehicles in proximity to his bus. As he approached any crosswalk, he would “cover the brake” in accordance with his training. This means he would place his foot on the brake without depressing and activating the brake. This is a safety precaution required by the TTC.
It is unclear from his evidence whether he actually observed a vehicle in the left lane [lane #1] stopped for the flashing crosswalk lights. Although he conceded awareness of several vehicles proceeding northbound, my recollection is that he did not actually confirm that there was a vehicle stopped in the left lane at the crossover.
As he approached the crosswalk in question, Mr. Kelleher was “covering the brake” as he had been trained to do. While he was a distance of approximately 60 feet behind the crosswalk, the flashing lights for the crosswalk were activated. According to the defendant, while checking his right, left and centre, he was suddenly and unexpectedly confronted by a pedestrian near the crosswalk who was completely dressed in dark clothing.
According to Mr. Kelleher’s version of events, this accident occurred when the pedestrian [Mr. Sung Woo Han] unexpectedly attempted to enter the crossover at a time when the defendant was unable to stop his bus safely. In fact, the defendant claimed that Mr. Han had never properly entered the crossover but had unexpectedly stepped off the curb after (mis)leading Kelleher into believing that Han was not attempting or intending to cross the road.
This is where Mr. Kelleher’s testimony becomes difficult to follow. It is difficult to know how much time elapsed between Kelleher’s first observance of Mr. Han and the impact of Mr. Han with the bus. According to prosecution witness Nicole Colacci, Kelleher did have time to utter aloud the comment that he did not think the pedestrian would try to enter the crosswalk. Mr. Kelleher did not recall making this utterance but he did not deny that he had made this comment.
What was particularly important in Mr. Kelleher’s testimony was his admission that he made an intentional decision not to stop his vehicle once he observed that Mr. Han was unexpectedly entering the crossover. His justification for this intentional decision was the safety of his bus passengers, some of whom were standing. His concern was that possibly 30 passengers could have been propelled through the front window of the bus if he had tried to stop as soon as he realized that Mr. Han was attempting to enter the crossover. A further concern was that the rear end of the bus would slide out to the left and collide with other vehicles. In Mr. Kelleher’s opinion, even if he had attempted to stop, he still would have struck and killed Mr. Han.
After describing the aftermath of the accident and the consequent investigation, Mr. Kelleher related that he was undergoing ongoing treatment for “post traumatic stress disorder”.
Kelleher Testimony On Key Points Rejected
Due to several inconsistencies between Mr. Kelleher’s testimony and other evidence, I have rejected certain parts of his testimony and preferred other evidence on certain key points.
For example, Mr. Kelleher’s claim that the pedestrian had not entered the crossover is simply not tenable. It conflicts with evidence of the reconstructionist [Officer Markle] that this accident could not, and would not, have happened had Mr. Han not been in the crosswalk. In other words, Officer Markle found no physical evidence to suggest that the collision occurred anywhere other than in the crosswalk. In fact, the reconstructionist was able to specify the point of impact which was clearly located in the crosswalk. Markle’s evidence and his report were sufficient to establish, beyond a reasonable doubt, that the pedestrian had been actually in the crosswalk and not at the side of the road as suggested by Kelleher.
There were other instances where Mr. Kelleher’s recollection either was not corroborated or conflicted with other evidence which was accepted. For example, the defendant’s estimate of his speed was challenged by the reconstructionist who indicated that, based upon his expertise and experience, this accident was a high speed impact. This was not merely a subjective opinion on the part of the reconstructionist. Officer Markle based his opinion on the height of the “cleaning effect” left by Mr. Han’s body as it travelled along the side of the bus after the initial impact. In general, the higher the body’s “cleaning effect on the side of the bus, the faster the speed of the vehicle. Although he did not attempt to calculate the bus speed form the physical evidence [there were no skid marks to use], the height of the body as it travelled along the side of the bus led Officer Markle to believe that this was a high speed impact.
Kelleher’s speed was also challenged by prosecution witness Paul Caggianello who described the bus as proceeding “at full power”. Further, Caggianello ventured that the bus was going so fast that the driver would have been unable to stop had he tried. Although this evidence seems to support Kelleher’s claim that he could not stop safely, it also tends to undermine his claim that he was travelling well below the 60 kph speed limit, i.e. around 45 kph.
My conclusion is not that Mr. Kelleher was lying but simply that he was mistaken on several key points. However, the effect of these “mistakes” was the undermining of his overall reliability especially where his evidence conflicted with other evidence.
Findings Respecting Liability
Based upon the evidence, I conclude that Timothy Kelleher violated the statute by failing to yield to a pedestrian [Mr. Han] who had just entered the crosswalk. To be more precise, I am satisfied that the prosecution has proven, beyond a reasonable doubt, that Timothy Kelleher failed to yield to Mr. Han on this occasion.
Conviction follows immediately upon my finding that Mr. Kelleher committed the prohibited act. Thus, the testimony of Mr. Kelleher respecting the care and attention he claims to have exercised on this occasion is simply beside the point. In light of my ruling that this is an absolute liability offence, any evidence of due diligence or reasonable mistake of fact has been rendered retrospectively irrelevant.
For instance, Mr. Kelleher testified that he honestly and reasonably believed that Mr. Han was not intending to enter the crosswalk. This belief was based upon the defendant’s description of Mr. Han merely standing at the crosswalk and not attempting to enter the crosswalk until the very last moment. If the offence were a strict liability offence and Mr. Kelleher’s testimony were believed, a trier-of- fact could conceivably conclude that the defendant had established the defence of reasonable mistake of fact. However, since the offence with which Mr. Kelleher was charged is an offence of absolute liability, he could not exculpate himself by demonstrating reasonable care or lack of fault.
I decline to decide whether, had this offence been one of strict liability, Mr. Kelleher would have successfully established, on a balance of probabilities, the defence of due diligence. However, I will venture to say that Mr. Kelleher’s evidence, on certain key points[10], was specifically contradicted by the prosecution evidence. Had the offence been one of strict liability, Mr. Kelleher may have had some difficulty in demonstrating either due diligence or reasonable mistake of fact, given my finding that his evidence was not completely reliable.
As mentioned previously, while testifying in his defence, Mr. Kelleher also alluded to the defence of necessity. This allusion occurred when the defendant mentioned the impossibility of stopping his bus once he realized that Mr. Han was unexpectedly attempting to enter the crosswalk at the last minute.
The defence of necessity, if established, would have rendered Mr. Kelleher’s act involuntary and would have permitted him to escape liability. However, the defence was not formally advanced. No caselaw authority was submitted and neither party addressed the defence of necessity in final submissions. It is doubtful whether the passing allusion to the defence in the course of Mr. Kelleher’s testimony was sufficient to place the defence before me for consideration. However, even if necessity had been formally advanced, I doubt that Mr. Kelleher would have been able to satisfy the stringent, cumulative preconditions to successful invocation of this defence[11]. As mentioned previously, the evidentiary foundation for the defence was insufficient to enable me to determine whether the requirements of the defence had been satisfied.
Sentencing Considerations
Mr. Kelleher has been found guilty of breaching important safety-promoting legislation. The importance of section 140(2) in promoting safety and the gravity of violating the section are attested by the penalties available under section 140(7) [See Appendix]. According to the penalty provision, the minimum fine is $150 and the maximum fine is $500. According to the Highway Traffic Act regulations, upon conviction, three demerit points are entered on the offender’s driving record. However, given the elapse of time between the offence and conviction in Mr. Kelleher’s case, the defendant will avoid the imposition of demerit points on his driving record.
In sentencing Mr. Kelleher, I have endeavoured to address the various, and often competing, purposes of sentencing: denunciation; deterrence; rehabilitation of the offender; and protection of the public.
During the sentencing phase of the trial, I invited submissions from the prosecution and the defence. Neither party cited any caselaw respecting an appropriate penalty for someone in the position of Mr, Kelleher. Thus, it was difficult to pursue parity in sentencing between Mr. Kelleher and other offenders convicted for the same offence. However, both the prosecution and defence made excellent submissions on the aggravating and mitigating circumstances of this case.
For the prosecution, Mr. Smith emphasized the importance of this legislation in promoting safety and protecting users of the road. Further, he stressed that Mr. Kelleher’s decision not to stop and the fatality in this case were an aggravating circumstances which needed to be specifically addressed. His submissions invoked, either explicitly or implicitly, the sentencing principles of denunciation, deterrence and protection of the public.
For the defence, Mr. Clarke made submissions requesting leniency for Mr. Kelleher. In so doing, Mr. Clarke underscored that the defendant was a professional, safety-conscious driver with a good record who had the misfortune to be involved in an accident which resulted in a fatality. He underscored the circumstances by which Mr. Kelleher was misled into believing that Mr. Han would not attempt to enter the crosswalk. He also emphasized that this accident and fatality had had a devastating effect on Mr. Kelleher. In particular, he cited the defendant’s treatment for post traumatic stress disorder and the fact that the defendant will live with this for the remainder of his life.
In sentencing, the sentencing court must seek to impose a sentence which reflects the circumstances of the particular offender and the particular offence[12]. The penalty must be proportionate to the gravity of the offence and any attendant aggravating circumstances. The penalty must also take into account the circumstances of the offender and any attendant mitigating circumstances. Finally, whatever penalty is imposed must serve the sentencing purposes of denunciation, deterrence, rehabilitation, and protection of the public, as they relate to the case under consideration.
Normally, one would think that causing a fatality would qualify an offender for imposition of the maximum penalty. However, in this case, there are countervailing considerations which would render the maximum penalty excessive or unjust. In particular, I refer to Mr. Kelleher’s genuine remorse for causing Mr. Han’s death and his consequent post traumatic stress disorder. While testifying, Mr. Kelleher became very emotional and broke down. Truly, this experience will haunt him for the remainder of his life.
Thus, in this case, there is little need to pursue either specific deterrence or rehabilitation. However this accident actually occurred, it was likely due to either a momentary lapse of attention or a mistake in judgment about the apparent intentions of the pedestrian. Mr. Kelleher is a professional, safety conscious driver with a good record. From this perspective, he does not require specific deterrence or rehabilitation. He has learned a painful lesson through experience and expressed genuine remorse for Mr. Han’s death. It is unlikely that he will commit this offence or be involved in this kind of accident in future.
Mr. Kelleher’s deliberate choice not to try to stop his bus, once he realized that Mr. Han had entered the crosswalk, deserves particular comment. It is difficult to know whether to classify this deliberate decision as an aggravating circumstance or a mitigating circumstance. On the one hand, the defendant made a deliberate choice which the statute prohibited him from making. On the other hand, this deliberate decision was motivated, ironically, by concern for the safety of his bus passengers.
In my view, on balance, Kelleher’s deliberate decision not to stop is more aggravating than mitigating precisely because the statute prohibited the very choice made by the defendant. Had Mr. Kelleher tried to stop his bus, he may have still struck Mr. Han. However, the attempt to stop may have resulted in injury, rather than death, to Mr. Han. In retrospect, it was a mistake to risk almost certain death to Mr. Han in an attempt to avoid possible, speculative injury to the bus passengers. In any event, the Highway Traffic Act precluded Mr. Kelleher from making the deliberate decision not to try to stop. Motorists must be dissuaded from second-guessing the legislature respecting basic, safety-promoting rules of the road.
Although Mr. Kelleher’s deliberate decision, not to try to stop, was an aggravating circumstance, it was motivated by genuine concern for the safety of his bus passengers. In short, the motivation of Mr. Kelleher constitutes a mitigating factor which effectively neutralizes the aggravating factor.
I am also mindful that Mr. Kelleher honestly believed that Mr. Han was not intending to enter the crosswalk. From Mr. Kelleher’s perspective, he was reacting to an unexpected maneuver by Mr. Han. Although lack of fault was irrelevant to his liability for an absolute liability offence, the circumstances in which he committed this offence do constitute a mitigating factor for purposes of sentencing.
Undeniably, Mr. Kelleher’s penalty must serve the sentencing purposes of denunciation, general deterrence and protection of the public. In failing to yield to this pedestrian, the defendant violated important safety legislation and, in consequence, killed a pedestrian. His conduct on this occasion must be denounced, especially in light of his deliberate choice not to try to stop his bus [this was a choice the statute prohibited]. The very harm that the statute was intended to prevent has materialized, i.e. someone has been killed.
Although Mr. Kelleher does not require specific deterrence, his sentence must be sufficient to serve as a message to other motorists that this statute imposes a requirement to yield to pedestrians, not a mere recommendation. In other words, other potential offenders must be made aware, by means of the penalty imposed on Mr. Kelleher, of the potentially disastrous consequences of violating this statutory provision. Further, as mentioned above, motorists must be discouraged from second-guessing the legislature respecting basic, safety-promoting rules of the road.
In my view, a penalty of $350.00 is necessary and sufficient to serve and balance the various sentencing purposes and considerations. How and why is this sentence appropriate in these circumstances? This sentence is necessary and sufficient to denounce violation of such important and basic safety legislation and to promote protection of the public. It is also necessary and sufficient to deter other motorists who might be tempted to disregard this safety requirement. This sentence acknowledges Mr. Kelleher’s genuine remorse, his post traumatic stress, and the circumstances with which he was confronted at the time he committed the offence.
For the reasons given, conviction is registered and a fine of $350.00 imposed.
Kevin V. Madigan
Justice of the Peace
Ontario Court of Justice
APPENDIX
Section 140 of Ontario’s Highway Traffic Act
140. (1) Subject to subsection (2), when a pedestrian or a person in a wheelchair crossing a roadway within a pedestrian crossover,
(a) is upon the half of the roadway upon which a vehicle or street car is travelling; or
(b) is upon half of the roadway and is approaching the other half of the roadway on which a vehicle or street car is approaching so closely to the pedestrian crossover as to endanger him or her,
the driver of the vehicle or street car shall yield the right of way to the pedestrian or a person in a wheelchair by slowing down or stopping if necessary. R.S.O. 1990, c. H.8, s. 140 (1).
Where vehicle stopped at pedestrian crossover
(2) When a vehicle or street car is stopped at a pedestrian crossover, the driver of any other vehicle or street car overtaking the stopped vehicle or street car shall bring the vehicle or street car to a full stop before entering the crossover and shall yield the right of way to a pedestrian or a person in a wheelchair,
(a) who is within the crossover upon the half of the roadway upon which the vehicle or street car is stopped; or
(b) who is within the crossover and is approaching the half of the roadway from the other half of the roadway so closely to the vehicle or street car that he or she is in danger if the vehicle or street car were to proceed. R.S.O. 1990, c. H.8, s. 140 (2).
Passing moving vehicles within 30 metres of pedestrian crossover
(3) When a vehicle or street car is approaching a pedestrian crossover and is within 30 metres thereof, the driver of any other vehicle or street car approaching from the rear shall not allow the front extremity of his or her vehicle or streetcar to pass beyond the front extremity of the other vehicle or street car. R.S.O. 1990, c. H.8, s. 140 (3).
Duty of pedestrian or person in wheelchair
(4) No pedestrian or person in a wheelchair shall leave the curb or other place of safety at a pedestrian crossover and walk, run or move the wheelchair into the path of a vehicle or street car that is so close that it is impracticable for the driver of the vehicle or street car to yield the right of way. R.S.O. 1990, c. H.8, s. 140 (4).
Municipal by-laws
(5) No municipal by-law that purports to designate a pedestrian crossover on a highway on which the speed limit is in excess of 60 kilometres per hour is valid. R.S.O. 1990, c. H.8, s. 140 (5); 2005, c. 26, Sched. A, s. 21 (1).
Riding in pedestrian crossover prohibited
(6) No person shall ride a bicycle across a roadway within a pedestrian crossover. R.S.O. 1990, c. H.8, s. 140 (6).
Offence
(7) Every person who contravenes subsection (1), (2) or (3) is guilty of an offence and on conviction is liable to a fine of not less than $150 and not more than $500. 2005, c. 26, Sched. A, s. 21 (2).
[1] For a good discussion of the nature of public welfare offences, please consult the Supreme Court of Canada judgment in R. v. Wholesale Travel Group Inc. (1991) 1991 CanLII 39 (SCC), 67 C.C.C.(3d) 193 at 237-238.
[2] Concerning the subdivision of public welfare offences into strict liability and absolute liability, see the judgment of Justice Dickson in R. v. Sault Ste. Marie (1978) 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.) at 373-375. This landmark decision of the Supreme Court of Canada is the leading case on classification of offences.
[3] This presumption, that public welfare offences are strict liability offences unless there are indications to the contrary, was articulated by Justice Dickson in the Supreme Court of Canada’s landmark judgment in R. v. Sault Ste. Marie (1978) 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.) at 373-375.
[4] How could one take reasonable measures to stop one’s vehicle without actually stopping? In the normal course of driving in ordinary circumstances, the reasonable care taken by the motorist should and would guarantee that the vehicle actually stopped. If, despite efforts to do so, it was physically impossible to stop one’s vehicle, then presumably the motorist could, and should, raise a defence which specifically challenges the voluntariness of his failure to stop. Due diligence is a defence which presupposes that the defendant has committed the prohibited act. In other words, unless the prosecution has proven the prohibited act beyond a reasonable doubt, the onus on the defendant, to prove due diligence on a balance of probabilities, never arises.
[5] See the judgment of the Supreme Court of Canada in Reference Re: Section 94(2) of the Motor Vehicle Act (British Columbia) 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486. According to this landmark decision, in general, no imprisonment may be imposed for an absolute liability offence and an offence punishable by imprisonment cannot be an absolute liability offence. Applied to the Kelleher case, this precedent merely indicates that there is nothing about the penalty in section 140(7) of the Highway Traffic Act which would automatically or necessarily disqualify the offence created by section 140(2) as an absolute liability offence.
[6] Use of the imperative “shall” invites the question whether the duty imposed is mandatory or merely directory. See Essentials of Canadian Law: Statutory Interpretation, Ruth Sullivan, Irwin Law, 1997, at pages 84-88.
However, in my view, when “shall” is used in a public welfare statute designed to promote public safety, a court should interpret the duty imposed to be a mandatory duty. See also the following footnote which discusses a well-known canon of statutory interpretation for public welfare statutes.
[7] In support of this well-established canon of statutory interpretation, please consult the judgment, of the Ontario Court of Appeal, in Ontario (Ministry of Labour) v. City of Hamilton 2002 CanLII 16893 (ON CA), [2002] O.J. 283. In the course of delivering the judgment of the Court in this occupational health and safety case, Justice Sharpe made the following pertinent comments:
“Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided.”
See also section 10 of Ontario’s Interpretation Act, R.S.O. 1990, c.I.11, which states:
Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
[8] The leading case on the defence of necessity is R. v. Perka 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232 (S.C.C.). Necessity is a defence which challenges the voluntariness of the act of the defendant. Writing for the majority, Justice Dickson indicated an evidential burden on the defence to adduce sufficient evidence to raise the issue. Assuming sufficient evidence were adduced to raise the issue, the prosecution then must meet the defence and must assume a persuasive burden to prove, beyond a reasonable doubt, that the defendant’s act was indeed voluntary.
[9] Although there was, in the past, some doubt about the availability of the defence of necessity to persons charged with absolute liability offences, the defence has been raised successfully much more frequently in the regulatory context than the criminal context. See Rick Libman, Libman On Regulatory Offences In Canda, Salt Spring Island B.C. Earlscourt, 2002, chapter 8, pages 8-3 to 8-4. See also J. Swaigen, Regulatory Offences In Canada: Liability & Defences (Toronto: Carswell, 1992) at pages 196-197.
In Ontario, Section 80 of the Provincial Offences Act ensures the availability of common law defences, such as necessity, to persons charged with public welfare offences.
Further, the authoritative comments of Lacourciere J.A. in R. v. Cancoil Thermal Corp. (1986) 1986 CanLII 154 (ON CA), 14 O.A.C. 225 (Ont. C.A.) state explicitly that the defence of necessity is available to defendants charged with absolute liability offences:
Even in offences of absolute liability, where "it is not open to the accused to exculpate himself by showing that he was free of fault" (The Queen v. City of Sault Ste. Marie, supra), there is no reason why other general defences should not be available such as necessity, duress and coercion.
For Ontario caselaw in which the defence of necessity was successfully raised against an absolute liability offence, please consult the following decisions: R. v. Hales [1995] O.J. No. 735 (Ontario Court of Justice); R. v. Card [2000] O.J.No. 2333 (Ontario Court of Justice).
[10] Although I found Mr. Kelleher to be sincere, I detected at least two errors in his testimony. First, his claim that he was traveling 45 kph was specifically contradicted by eyewitness Paul Caggianello and by the collision reconstructionist. Second, his claim that the pedestrian, Mr. Han, was not properly in the crosswalk was contradicted by the reconstructionist who located the point of impact in the curb lane, not on the side of the road. These errors caused me to question the overall reliability of Mr. Kelleher’s evidence.
[11] In R. v. Latimer 2001 SCC 1 (CanLII), [2001] 1 S.C.R. 3 (S.C.C.), the Supreme Court of Canada summarized the three requirements for invocation of the defence of necessity:
Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.
In my view, had Mr. Kelleher formally advanced the defence of necessity, the prosecution may have been able to dispute that Kellher had satisfied the third requirement, i.e. proportionality between the harm inflicted and the harm avoided. In the circumstances of the Kelleher case, the striking and killing of Mr. Han, through failure to try to stop, was a virtual certainty, whereas the apprehended harm to Kelleher’s bus passengers, from trying to stop, was somewhat speculative. In other words, the prosecution could have argued that the defence did not permit Mr. Kelleher to risk death to Mr. Han in an effort to avoid injuring his bus passengers.
[12] Note that, under Ontario’s Provincial Offences Act, there are no sentencing principles or guidelines. Thus, sentencing principles and guidelines are derived from caselaw interpreting and applying the sentencing principles and guidelines found in Canada’s Criminal Code.
For authoritative discussion of sentencing principles, please consult the following caselaw: Reference Re: B.C. Motor Vehicle Act (1985)1985 CanLII 81 (SCC), 23 C.C.C. (3d) 289 (S.C.C.); R. v. C.A.M. (1996) 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.); R. v. Gladue (1999) 1999 CanLII 679 (SCC), 133 C.C.C. (3d) 385 (S.C.C.); R. v. Proulx 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61 (S.C.C.); and R. v. Morrisey 2000 SCC 39 (CanLII), [2000] 2 S.C.R. 90 (S.C.C.). These cases address the proportionality principle which is a fundamental principle of sentencing.
Comments
Post a Comment