Court of Appeal for Ontario

Date: 2022-03-28 Docket: C67996

Judges: Lauwers, Pardu and Sossin JJ.A.

Between: Her Majesty the Queen Respondent

And: Jorge Gomes Appellant

Counsel: Carter Martell, for the appellant Kristen Pollock, for the respondent

Heard: March 9, 2022 by video conference

On appeal from the conviction entered on August 15, 2019 by Justice Sean F. Dunphy of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 4808, and the sentence imposed on February 14, 2020, with reasons reported at 2020 ONSC 1013.

Reasons for Decision

1The appellant was convicted of two counts of operating a motor vehicle while impaired by alcohol causing bodily harm contrary to s. 255(2) of the Criminal Code, R.S.C. 1985, c. C-46. He appeals against his conviction.

2The appellant was sentenced to a custodial sentence of 3 years, followed by a 3-year driving prohibition. The appellant seeks leave to appeal this sentence.

3For the reasons that follow, the appeal is dismissed.

Background Facts

4The convictions against the appellant arose out of a motor vehicle accident involving a pick-up truck and two pedestrians at around 2:00 a.m. on June 3, 2017.

5Three men had just exited a bar on a commercial stretch of Eglinton Avenue West in Toronto. They began crossing the street on their way to one of their homes nearby. They paused in the westbound lane, near the median, to allow a tow truck to pass them in the eastbound lane. Seconds later, they were hit by a pick-up truck driven by the appellant speeding in the westbound lane. The violent collision caused serious injuries to two of the three men, Mr. Marchese and Mr. De Vellis. The third man, Mr. Hedman, was not hit and suffered no injury.

6At trial, there was an agreed statement of facts. The appellant admitted the time, date and place of the accident, and that he was driving the vehicle involved in the accident. He admitted that he had a blood alcohol concentration at the time of the accident of between 150 mg and 185 mg of alcohol in 100 ml of blood. The appellant also admitted that the injuries sustained by the two pedestrians constituted bodily harm for the purposes of s. 255(2) of the Criminal Code.

7The trial judge heard evidence from a number of witnesses, including the three pedestrians; Mr. Martins, the driver of a tow truck who passed the pedestrians just prior to the collision; Officer Persichetti, a police officer who attended the scene of the accident; Detective Constable Chin, a police officer with expertise in the investigation and reconstruction of motor vehicle collisions; and an expert toxicology witness who testified on the effects of alcohol impairment on drivers of motor vehicles. The appellant did not testify.

8Detective Constable Chin testified about data drawn from the pick-up truck’s sensing diagnostic module (“SDM”), which recorded pre- and post-crash data. DC Chin testified that the SDM did not record continuously but began recording in response to certain events. The moment the system began recording was referred to as “Algorithm Enabled” (“AE”), and the system captured data for the five seconds preceding. He testified that AE could have been triggered by rapid deceleration or by a collision.

9The trial judge found that the appellant was impaired, based on the admission that the appellant had a blood alcohol concentration of between 150 mg and 185 mg of alcohol per 100 ml of blood at the time of the collision and expert evidence as to the degree of impairment this would cause. The trial judge also noted that it was agreed that the harm suffered by Mr. De Vellis and Mr. Marchese amounted to bodily harm, and that the overwhelming evidence indicated that the bodily harm arose as a direct consequence of the collision, in which the appellant’s truck struck the two men.

10The trial judge concluded that the Crown had established that the appellant’s impaired driving caused bodily harm, based on the following findings of fact:

• The three pedestrians ought to have been visible in the roadway to the driver of a pick-up truck and in conditions of good lighting for four to five seconds before the collision;
• At the time the three pedestrians reached the area of the median, the appellant’s vehicle was far enough away from the pedestrians so as not to be perceived as a danger by the tow truck driver, Mr. Martins, and to provide ample opportunity for the appellant to react to the presence of the pedestrians in a way that would have avoided the accident entirely;
• The appellant was driving at a high rate of speed (over 50 percent above the posted speed limit of 50 km per hour) and was accelerating as he approached the scene until the last instant, depriving himself of some of the reaction time that might otherwise have been available to avoid the collision;
• The appellant was travelling towards the pedestrians at a time when his faculties needed to process and deal with emerging risks and hazards were impaired by the presence of significant quantities of alcohol in his system; and
• There was no evidence that the appellant noticed the imminent collision more than an instant before it occurred, because there was no indication of more than minor braking prior to the hard braking and no indication that the appellant reacted to the presence of the pedestrians by using some of the room that was available in the curb lane to attempt to steer his vehicle away from harm prior to the collision.

11Based on these findings, the trial judge found that the Crown had met the standard of proof required to convict the appellant for operating a motor vehicle while impaired by alcohol causing bodily harm contrary to s. 255(2) of the Criminal Code.

Analysis

12The appellant raises the following grounds of appeal against the conviction:

(1) The trial judge made findings of fact unsupported by the evidence; and (2) The trial judge reached an unreasonable verdict.

13The appellant also seeks leave to appeal against the sentence imposed. The appellant argues that the trial judge failed to appropriately consider mitigating factors such as his remorse, and gave inadequate weight to collateral immigration consequences, in determining the sentence. The appellant also submits that the trial judge erred in relying on the Superior Court of Justice decision in R. v. Bulland, 2019 ONSC 4220 (Bulland ONSC), rev’d 2020 ONCA 318 (Bulland ONCA), to determine an appropriate sentence.

14Each ground of appeal is addressed in turn.

The trial judge’s findings were available on the evidence

15With respect to the first ground of appeal, the appellant argues that the trial judge made four findings of fact unsupported by the evidence in determining legal causation.

16The trial judge held that in order to find the appellant guilty of impaired driving causing bodily harm, he must find not only that the appellant was impaired but also that the bodily harm suffered by the pedestrians was caused as a result of the appellant’s impaired operation of the pick-up truck. He stated, at para. 88, “If the accident was not avoidable or if there is reasonable doubt as to whether it was avoidable, then the necessary causal relationship will not have been demonstrated by the Crown to the required standard of proof.”

17First, the appellant argues that the trial judge’s finding that it was safe for the pedestrians to cross the road, based on the evidence of the eyewitnesses, was contradicted by physical evidence, namely the fact of the collision and the SDM data from the appellant’s vehicle. Second, the appellant submits that the trial judge erred in finding that a sober driver would have swerved to avoid the pedestrians because there was no evidence that this manoeuvre would have avoided the collision or would have been possible. Third, the appellant submits that the trial judge’s finding that the pedestrians were on the roadway and visible for at least four to five seconds was based on two premises unsupported by the evidence, namely the speed of an unhurried pedestrian and the width of the westbound lanes. Fourth, the appellant submits that the trial judge erred in finding that the appellant only responded to the pedestrians at the last second before impact, which misapprehended the AE evidence.

18We reject these submissions.

19First, the trial judge accepted portions of the evidence of the pedestrians as to their position on the road prior to the collision and the fact that they did not believe they were in danger from westbound traffic when the tow truck passed them. The trial judge also relied on the testimony of Mr. Martins, the tow truck driver, as to the proximity of the appellant when he passed the pedestrians. The trial judge stated, at para. 63:

All allowances being made for the frailty of memory when it comes to re-constructing events in minute detail, Mr. Martin’s evidence does provide some reliable information. He did have his attention drawn to the three men crossing the road as he came alongside them. There was nothing that he saw – whether it be their direction and speed relative to his own or the state of any on-coming traffic heading towards them – that caused him to become alarmed to the point where a more detailed picture became imprinted upon his memory. I infer that Mr. Gomes’ vehicle at this point was far enough away from this scene as not to appear to pose any danger to anyone.

20The trial judge relied more heavily on Mr. Martins’ testimony to find that the pedestrians were hit after the tow truck passed them, because Mr. Martins was not directly involved in the incident and had a specific memory of the actions he took in consequence of hearing the collision after he passed the pedestrians. It was open to the trial judge to accept the eyewitnesses’ testimony that the road was safe to cross, and Mr. Martins’ evidence that the collision occurred shortly after he passed the pedestrians. These findings were not contradicted by the fact of the collision or the SDM data, given that the SDM data indicated that the appellant was speeding prior to the collision, and the SDM data only provided information about the appellant’s driving, not about when the pedestrians became visible in the road.

21Second, the trial judge relied on scene photographs to support his finding that there was sufficient room for the appellant to have swerved to the right to avoid the pedestrians. This finding was open to him on the record. Third, the trial judge relied on Mr. Marchese’s evidence as to the pedestrians’ pace, and a five km per hour walking speed “as a rough rule of thumb” consistent with the pace, as well as DC Chin’s lane measurements, to calculate the length of time the pedestrians were in the road. It was open to the trial judge to rely on Mr. Marchese’s and DC Chin’s evidence, and although the five km per hour pace was not in evidence, the trial judge used this as a rough guide rather than a precise measurement.

22Finally, the appellant submits that the trial judge’s finding that at “the one second pre-crash data point” the brake was engaged reflects a misapprehension of the AE evidence. However, the trial judge used this term to refer to data collected prior to the AE, and his reasons reflect an understanding that the AE was not necessarily the moment of collision.

23Ultimately, the trial judge correctly stated the test for legal causation and the factual findings he made in order to conclude that legal causation was established in this case are entitled to deference and were available to him on the evidence.

24We dismiss this ground of appeal.

The trial judge’s verdict was reasonable

25Assessing the reasonableness of the verdict involves asking whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. In our view, the appellant has not established that the verdict was unreasonable.

26The trial judge was satisfied that the collision was avoidable and that the Crown established beyond a reasonable doubt that the collision arose as a result of the impaired operation of the motor vehicle by the appellant.

27The appellant argues that the Crown’s evidence was incapable of proving that the accident was the result of the appellant’s impairment from alcohol, and that a sober driver could have avoided the accident. According to the appellant, the trial judge’s findings were not supported by the evidence before him. For example, the trial judge found that speed played a key role in the collision, but there was no evidence that if he were driving at the posted speed limit, the collision could have been avoided.

28The appellant also argues that it was unclear whether his alcohol impairment played any role in the speed he was travelling. The appellant contrasts this case to R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641, leave to appeal refused, [2007] S.C.C.A. No. 298, where the trial judge held that a driver’s decision to speed and accelerate through streets with significant car and pedestrian traffic indicated that the driver was not “in possession of all his faculties” (at para. 73). In contrast, this case involved a long stretch of road without traffic in the middle of the night. According to the appellant, in such conditions, it is entirely possible that a sober person would also be speeding. The appellant also submits that the Crown failed to prove that the appellant’s reaction, once he observed the pedestrians, indicated impairment, because it was equally consistent with momentary inattention. The appellant argues that the trial judge’s conclusion that the appellant’s impairment caused the collision was not supported by the evidence.

29We disagree.

30The expert evidence on the effects of impairment accepted by the trial judge made clear that the appellant’s ability to multi-task and to assess the danger posed by the pedestrians on the street, his vigilance, his judgment of speed and distance and his reaction time would all be adversely affected by his impairment. This evidence was consistent with the testimony of Mr. Martins that the pedestrians would have been visible to on-coming traffic, the testimony of the eyewitnesses that the appellant’s vehicle was sufficiently far away when the tow truck passed the pedestrians that it was not perceived to be a danger, and the SDM data, which indicated that the appellant was driving well above the speed limit and accelerating until seconds before he braked and collided with the pedestrians.

31It was open to the trial judge to conclude that the pedestrians were visible for four to five seconds prior to the collision and that the appellant failed to see and react to them due to his impairment.

32We see no basis to conclude that the trial judge’s verdict was unreasonable.

The trial judge did not err in the sentence imposed

33The appellant argues that the trial judge gave insufficient weight to the fact that he was a first-time offender, to his remorse, and to the serious immigration consequences of his sentence. The appellant also takes issue with the trial judge’s reliance on Bulland ONSC.

34A trial judge’s determination of a fit sentence is entitled to a high degree of deference.

35The trial judge explicitly listed one mitigating factor in his decision, the fact that the appellant worked cooperatively to narrow the issues at trial. The trial judge also noted the appellant’s lack of prior criminal record. However, the trial judge concluded that the mitigating factors in this case were outweighed by the fact that the primary sentencing principles were denunciation and deterrence in this case. He stated, at para. 25:

Mr. Gomes presents – as do many offenders convicted of alcohol-related offences – as a very solid citizen. He is a support for his parents, an integral part of a close-knit family. He has worked his whole life and is by all accounts a contributing, valuable member of our community. He has no criminal record. The leniency that these aspects of his individual make-up might otherwise command is overshadowed by the paramountcy that must be given to the objectives of general deterrence and denunciation in this case, by the gravity of the offence and his degree of moral blameworthiness in it.

36The appellant also submits that the trial judge erred in giving no specific consideration to the fact that the appellant had demonstrated remorse by making concessions at trial and refraining from any attempt to reinstate his driver’s licence prior to sentencing. However, to the extent that making concessions at trial reflected remorse, the trial judge considered this factor.

37The trial judge also considered the immigration consequences for the appellant. He acknowledged that, because each of the offences for which the appellant was convicted carry a maximum sentence of up to ten years in prison, the appellant could be subject to deportation, and a custodial sentence of longer than six months would render the appellant unable to appeal a decision that he be removed from the country. The trial judge concluded, at para. 13, “In the present case, it is quite clear that a sentence under six months would be manifestly unfit in the circumstances here present and I cannot be swayed by sympathy for an offender facing dramatic if collateral immigration consequences to reverse engineer a sentence that is otherwise unfit to avoid the prospect of removal by immigration authorities should they determine to exercise their statutory discretion to do so.” The trial judge’s consideration of the collateral immigration consequences was consistent with the Supreme Court’s direction in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14-15.

38The appellant also takes issue with the trial judge’s reference to the decision in Bulland ONSC, in determining the appropriate sentence. In Bulland ONSC, the trial judge imposed a sentence of 39 months for a similar offence. However, in Bulland ONCA, this court overturned the sentencing decision in Bulland ONSC and reduced the appellant’s sentence. This court’s decision in Bulland ONCA was not available to the trial judge in this case at the time of sentencing.

39The trial judge in Bulland ONSC imposed a sentence well in excess of the sentence the Crown requested and failed to put the defence on notice that a higher sentence was being contemplated. The trial judge also failed to indicate in his reasons why he departed so significantly from the Crown position. These procedural errors led this court to reduce the sentence to two years, followed by three years’ probation, to reflect the Crown position.

40The appellant submits that had the trial judge had the benefit of this court’s decision in Bulland ONCA, he likely would have started from a range of two years less a day. However, there were no such procedural errors in this case, and no indication that the trial judge relied on Bulland ONSC to establish a sentencing range. Rather, in rejecting the range put forward by the defence, the trial judge observed that, among the cases advanced by the defence, Bulland ONSC was the most comparable. Further, this court in Bulland ONCA did not cap the range of appropriate sentences. Rather, this court commented that a penitentiary sentence in excess of two years would be appropriate but imposed a sentence of two years based on the circumstances of the case.

41We would grant leave to appeal the sentence, but dismiss the appeal.

Disposition

42For these reasons, we dismiss the conviction appeal, grant leave to appeal the sentence but dismiss the sentence appeal.