Charge: Fail to Remain Cause Death

Counsel: Adrianne DiSimoni

Courthouse: Milton

Date of Judgment: April 8, 2024

Background

A young male was driving through a parking lot area when a child ran from behind a parked vehicle directly in the path of the male driver. The child was struck by the moving vehicle and run over. The vehicle was observed on camera proceeding through a nearby stop sign and away from the collision site. The young child succumbed to their injuries and later passed away at hospital. The young male driver was arrested shortly after at his home.

The Issue

The first issue to reconcile was if there is sufficient evidence to identify the accused as the driver of the vehicle.

The next issue was determining what an appropriate sentence is in light of the seriousness of the outcome of this collision, in the event identity is not an issue.

The Strategy

After a careful review of the significant disclosure and relevant caselaw, there was no basis to challenge identity. The accused wished to proceed with a guilty plea to take responsibility and save his family and the family of the child from reliving this experience.

The defence shifted to a resolution mindset, however the Crown was not willing to move from a serious custodial position. In preparation for the Judicial Pre-Trial and sentencing hearing, counsel conducted extensive research into the range of appropriate sentences for Fail to Remain Cause Death with a special focus on the viability of proposing a Conditional Sentence.  With the support of the accused and his family, counsel acquired a vast amount of letters of support as well as medical records to provide a fulsome picture of this accused. These supporting documents were central to a successful argument for a Conditional Sentence.

The Result

Following a lengthy sentencing hearing, the presiding justice agreed with defence counsel submissions that the principles of sentencing can be achieved through a Conditional Sentence in these very specific circumstances. Counsel applied significant effort in differentiating the matter before the court to the cases relied upon by the Crown and reiterated the comments made by the Supreme Court of Canda in R v Proulx, [2000] 1 SCR 61 that outline the fitness of a Conditional Sentence (see paragraphs 113 to 115). Counsel highlighted several recent decisions where a conditional sentence was deemed appropriate in similar if not more aggravating circumstances. This included R v Armitage [2023] ONCJ 182 where Justice O’Donnel importantly clarifies the distinction that the judge is not being called upon to sentence the accused for having caused the death of the victim, rather the decision to flee the scene. This is something that often gets overlooked or diminished in these tragic Fail to Remain Cause Death cases.

Faced with a significant jail sentence the family came to us with great stress and concern. After the compelling arguments that counsel made at both the judicial pretrial and the sentencing hearing, the Judge agreed with the Defence and the accused was able to serve his sentence at home in the community.