Court of Appeal for Ontario

Date: 2025-04-28
Docket: COA-24-CR-0660
Coram: Zarnett, Coroza and Favreau JJ.A.

Between:
His Majesty the King (Respondent)
and
Arsenije Lojovic (Appellant)

Appearances:
Stephen Whitzman and Iris Liu, for the appellant
Matthew Morley, for the respondent

Heard: November 29, 2024

On appeal from the conviction entered by Justice Frederic M. Campling of the Ontario Court of Justice on July 17, 2023, and the sentence imposed on August 31, 2023.

Favreau J.A.:

A. Introduction

1The appellant, Arsenije Lojovic, was found guilty of dangerous driving causing death, failing to remain causing death and breach of probation. Following the findings of guilt, Mr. Lojovic applied for an assessment to determine if he was not criminally responsible (NCR). The trial judge refused the application. The trial judge subsequently imposed a 10-year sentence.

2Mr. Lojovic appeals his conviction on the basis that the trial judge erred in refusing to order an NCR assessment. He also seeks leave to appeal his sentence on the basis that it is harsh and excessive, and that the trial judge improperly treated his mental illness as an aggravating factor.

3I would dismiss the conviction appeal. I would grant leave to appeal the sentence and allow the sentence appeal, and I would substitute an 8-year sentence for the 10-year sentence.

B. Conviction Appeal

(1) Circumstances of the Offence

4On April 5, 2022, Mr. Lojovic took his mother’s car from their home in Grimsby, Ontario, and drove to Hamilton. He then drove erratically and at very high speed throughout various parts of Hamilton, including the downtown area. He drove through several red lights and, at times, the wrong way on one-way streets and in the wrong lane toward oncoming traffic. At least one car had to drive onto the curb to avoid him. The police were alerted and tried to pursue him.

5As he drove the wrong way down Park Street, Mr. Lojovic hit a pedestrian, Boris Brott. Mr. Brott, who had been crossing the street, went “flying through the air”, and died due to the collision.

6Mr. Lojovic did not stop at the scene but continued driving at high speed, going the wrong way toward incoming traffic, passing through several red lights and almost causing another collision.

7The police eventually caught up with Mr. Lojovic and tried to pin his car between two cruisers. When one officer approached Mr. Lojovic and attempted to reach through the open passenger-side window for the keys or gear shift, Mr. Lojovic swatted his hand and accelerated in reverse. The officer was dragged for approximately 50 yards. He suffered injuries that prevented him from working for approximately six weeks.

8The police were ultimately able to stop Mr. Lojovic and arrest him.

(2) Trial and Finding of Guilt

9The Crown called several witnesses at trial who had seen Mr. Lojovic’s driving, including when he hit Mr. Brott. Several police officers involved in the incident also testified at trial as part of the prosecution’s case.

10Mr. Lojovic testified on his own behalf. Part of his evidence focused on his mental health history. He was diagnosed with bipolar disorder in February 2011. At that time, he was hospitalized and received medication. He was hospitalized again in February 2022 for three weeks and again for a few days in March 2022.

11Mr. Lojovic also gave some evidence regarding what occurred on April 5, 2022. He said that his memory of that day was limited. He did not remember driving on the wrong side of the street or driving through red lights. He did remember hitting a pedestrian and said that he had been distracted by another car. He also said that he did not stay at the scene because he panicked, was in shock and did not know how to do CPR.

12Mr. Lojovic’s psychiatrist, Dr. Stephen Webb, also testified at trial as a defence witness. Counsel for the Crown had objected to his testimony on the basis that he was not qualified as an expert and any evidence he gave as a lay witness would not be relevant. After a voir dire, the trial judge allowed him to testify, stating that his evidence could be relevant to Mr. Lojovic’s state of mind.

13Dr. Webb testified that he had been Mr. Lojovic’s treating psychiatrist from July 2018 to November 2021. He had not had contact with Mr. Lojovic since November 2021. Dr. Webb testified that, when Mr. Lojovic is in a manic state, his symptoms include reduced sleep, increased energy, rapid thoughts and speech, extreme irritability, persecutory delusions and impulsive behaviour. He further testified that Mr. Lojovic’s erratic driving in this case was consistent with his being in a manic state.

14In his reasons, the trial judge first noted that Mr. Lojovic’s counsel had not disputed the charges of failing to remain causing death and breach of probation. His reasons focused on the evidence of what occurred on April 5, 2022. He concluded that Mr. Lojovic’s driving was “clearly dangerous” and “a marked departure from the standard of driving required”, thereby meeting the criminal standard. He convicted Mr. Lojovic of all three charges.

(3) NCR Application

15Just after the trial judge delivered his reasons for conviction, Mr. Lojovic’s lawyer indicated that she had been instructed to bring an application for an NCR assessment pursuant to s. 672.11 of the Criminal Code.

16Immediately after the request was made, the trial judge raised the issue of whether it was appropriate for him to consider the issue after having rendered judgment on conviction, but then noted that s. 672.12 provides that the court can make an assessment order “at any stage of proceedings”.

17The submissions made by Mr. Lojovic’s trial counsel and the Crown on the issue were very brief. Based on the wording of s. 672.11, counsel for the Crown emphasized that, before ordering an assessment, the trial judge had to be satisfied that there were “reasonable grounds to believe” that the assessment would be necessary to determine whether Mr. Lojovic was suffering from a mental disorder at the time he committed the offence that would exempt him from criminal responsibility. Mr. Lojovic’s trial counsel simply submitted that the evidence Mr. Lojovic and Dr. Webb gave during the trial supported a finding that there were reasonable grounds to believe that he was suffering from such a mental disorder when he was driving on April 5, 2022.

18Shortly after hearing these submissions, the trial judge dismissed the application. In doing so, he stated that he had considered the evidence Mr. Lojovic and Dr. Webb gave at trial, and that their evidence did not suggest that an assessment would give rise to an NCR defence. He ultimately concluded as follows:

I do not accept that an assessment is necessary to determine your criminal responsibility. You have already had a chance to raise that. You have had a chance to testify about your own state of mind. You have called an expert psychiatrist who could have given at least hypothetical evidence about what a manic episode could do to you in the context of driving an automobile. None of that happened. The trial is now over except for the sentence.

(4) Analysis

19Mr. Lojovic submits that the trial judge made two errors in refusing to order an NCR assessment: 1) he erroneously relied on the late timing of the application as a basis for dismissing it, and 2) he misstated the relevant test for determining whether to order an NCR assessment.

20I would dismiss both grounds of appeal.

21I start first with a review of the relevant statutory test for obtaining an NCR assessment, followed by a discussion of the two issues raised by the appellant.

(i) Statutory Test

22Section 16(1) of the Criminal Code provides that:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

23Section 16(2) provides that every person is presumed not to suffer from a mental disorder under subsection (1) unless the contrary is proven on a balance of probabilities. In addition, s. 16(3) provides that the party raising the issue has the burden of proving a mental disorder.

24Section 672.11(b) gives the court the power to order an assessment to determine whether a person is suffering from a mental disorder pursuant to s. 16(1). Before ordering an assessment, the court must be satisfied that there are “reasonable grounds to believe that such evidence is necessary” to determine whether the accused was not criminally responsible:

A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1).

25Pursuant to s. 672.12(1), the court can make an assessment order “at any stage in the proceedings”.

(ii) The Trial Judge Did Not Dismiss the Application Because of Its Late Timing

26The appellant argues that the trial judge improperly dismissed the application because it was brought too late. I disagree.

27It is evident from s. 672.12(1) of the Criminal Code that the court can order an assessment to determine criminal responsibility at any stage in the proceeding. The trial judge was aware of this, based on his discussions with counsel for Mr. Lojovic and the Crown.

28Further, in his ruling rejecting Mr. Lojovic’s application, the trial judge did not state that the application was brought too late because he had already found him guilty. Rather, as he stated explicitly, his conclusion was based on the evidence he heard at trial from Mr. Lojovic and his psychiatrist.

29The threshold for ordering an assessment is whether there are reasonable grounds to believe that an assessment is necessary to determine whether, at the time Mr. Lojovic committed the offence, he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his actions or of knowing that they were wrong. By the time Mr. Lojovic brought his application, the trial judge had the benefit of the evidence from Mr. Lojovic and Dr. Webb to help him assess Mr. Lojovic’s state of mind at the time of the offence. It is evident that the trial judge dismissed the application because he did not consider a further assessment was necessary to determine Mr. Lojovic’s criminal responsibility, given the evidence he had already heard at trial.

30In his reasons for sentence, the trial judge provided a further explanation for not ordering an NCR assessment, which demonstrates that he dismissed the application based on the evidence at trial. In response to comments in the pre-sentence report attributed to Mr. Lojovic and his mother expressing frustration that he had not been found NCR, the trial judge explained that it was “not an option for” him to find Mr. Lojovic NCR. He elaborated as follows:

The evidence about your mental state came nowhere near on the trial, to making you not criminally responsible. There is no question in my mind that when you hit Boris Brott and killed him and when you drove dangerously through many parts of Hamilton without any real rhyme or reason to your route, there is no question in my mind that a manic episode of your illness was at play. But it did not go so far as rendering you incapable of appreciating the nature and quality of your act, namely striking Boris Brott.

You testified in your own defence, and on your evidence, you knew that you had hit a pedestrian. You knew that it was bad. You were shocked, and so you continued driving away from the scene. That tells me that you knew what you were doing. You knew that it was wrong, and that you did not want to get caught by staying at the scene, so it is clear to me on that evidence that although suffering from a mental disorder, it was not a disorder that made you not criminally responsible.

31When Mr. Lojovic’s trial counsel made the request for an assessment, she did not call any additional evidence or request an opportunity to do so. It was therefore evident that the application was to be based on the evidence at trial. Notably, on appeal, Mr. Lojovic has not brought a motion for fresh evidence, nor has he demonstrated that the trial judge erred in concluding that the evidence at trial did not provide reasonable grounds to believe that an assessment would be necessary to determine whether he was NCR at the time he committed the offence.

32This is different from a situation where an application for an assessment is made before trial, at a time when there may be very little evidence or information about an accused’s state of mind at the time of the offence. In this case, Mr. Lojovic and Dr. Webb had both already testified at trial. Mr. Lojovic specifically addressed his state of mind at the time he committed the offence. It was open to the trial judge to rely on that evidence to deny the request for an assessment. While it would have been an error for the trial judge to rely on the timing of the request as the sole basis for denying an assessment, the timing of the request was relevant because, by the end of trial, the trial judge had heard evidence from Mr. Lojovic and Dr. Webb and he was in a position to consider that evidence in deciding whether there were grounds for ordering an assessment.

(iii) The Trial Judge Did Not Misstate or Misapply the Relevant Test

33Mr. Lojovic submits that the trial judge applied the wrong test under s. 672.11(b) of the Criminal Code. He argues that, while s. 672.11(b) required the trial judge to be satisfied that there were reasonable grounds to believe that an assessment was required to determine whether Mr. Lojovic was NCR, the trial judge improperly applied the test for a finding of NCR under s. 16(1). I disagree.

34The trial judge stated the correct test in his reasons:

The section requires that to make such an order, I must have reasonable grounds to believe that the evidence flowing from such an assessment is necessary to determine that question of criminal responsibility.

35He also explicitly asked himself whether evidence from an assessment was necessary given the evidence he had already heard at trial:

In determining whether the evidence from such an assessment is necessary as required by 672.11, I consider the evidence on your trial and especially your own evidence and the evidence of Dr. Webb, who treated you for bipolar disorder up to November 2021, several months before you committed these offences.

Does that evidence provide some basis to believe that you might have been suffering, when you committed these offences, from a mental disorder that rendered you incapable of appreciating the nature and quality of your acts or omissions, or of knowing that they were wrong?

36Accordingly, the trial judge was aware of the test to be applied under s. 672.11(b) of the Criminal Code. In applying the test, he asked himself whether an assessment was necessary given the evidence he had already heard. This was not an error.

(5) Conclusion on the Conviction Appeal

37The trial judge did not err in dismissing the application for an NCR assessment. He applied the correct test and made no error in determining that there was no reason to believe that an assessment was necessary.

C. Sentence Appeal

38Mr. Lojovic seeks leave to appeal his sentence and, if leave is granted, he appeals his sentence on the basis that the trial judge erred in treating his bipolar disorder as an aggravating factor rather than a mitigating factor. He further argues that the sentence was excessive and unduly harsh.

39I agree that the trial judge erred in principle by treating the appellant’s bipolar disorder as an aggravating factor. I would substitute an 8-year sentence for the 10-year sentence.

40I start with a review of the sentencing decision, followed by an analysis of the error committed by the sentencing judge and an assessment of a fit sentence in this case.

(1) Sentencing Decision

41At the sentencing hearing, the Crown sought a 10-year sentence whereas Mr. Lojovic’s trial counsel suggested that a sentence of 5 to 6 years would be appropriate. Both counsel referred to Mr. Lojovic’s mental health condition. The Crown submitted that evidence concerning mental illness “goes both ways”, in that it could be a mitigating factor, but could also, given Mr. Lojovic’s failure to cooperate with treatment, require a longer sentence. In contrast, defence counsel suggested that Mr. Lojovic’s mental health condition lowered his moral culpability compared to someone who committed a similar offence but did not suffer from a mental health disorder.

42In his sentencing reasons, the trial judge rejected Mr. Lojovic’s submission that his bipolar disorder should be treated as a mitigating factor and instead suggested that, because he knew he was facing an oncoming manic episode, he should have taken steps to avoid driving:

The problem I have with [defence counsel’s] submission is that what you did, your driving, your killing Boris Brott was preventable. You could have prevented it. You knew you suffered from bipolar affective disorder. You knew that, that illness manifested itself mainly in manic or the psychiatrists might say hypomanic episodes, and you knew how to deal with that.

43The trial judge then noted that Mr. Lojovic had himself given evidence about things he would do to handle manic episodes when he felt they were coming on. He also referred to two prior instances when Mr. Lojovic had driven while manic that led to criminal convictions, suggesting that Mr. Lojovic was well aware of the risks of driving in such a state. He then stated that this made Mr. Lojovic’s decision to drive on April 5, 2022 “worse”:

So more than once driving while under the influence of a hypomanic episode had gotten you into trouble, had gotten you charged with dangerous driving, for which you remained on probation on April 5, 2022, and had resulted in your driving into fixed obstacles.

To me, that makes it worse that when you had a hypomanic episode coming on the morning of April 5, 2022, you got your mother’s car keys, took her car without her permission, and drove the way we have seen during your trial in a dangerous manner, through many parts of Hamilton; excessive speed, wrong way on one-way streets, including the street that Boris Brott was peacefully walking on about 10:20 a.m. that morning. [Emphasis added.]

44In his reasons, the trial judge further stated that “the gravity of the offence [was] extreme” and that the degree of Mr. Lojovic’s responsibility was “total”.

45The trial judge ultimately sentenced Mr. Lojovic to a total of 10 years, broken down as: 6 years for dangerous driving causing death, 3 years for failing to remain causing death and 1 year for breach of probation, all to be served consecutively. Based on Mr. Lojovic’s 514 days of pre-sentence custody, the trial judge deducted 871 days from his sentence. He distributed the credit by deducting six months from the sentence for breach of probation, leaving six months to be served on that sentence, and by deducting the remaining “dead time” from the sentence for failing to remain causing death, leaving one year and 39 days to serve for that sentence. The trial judge also imposed a number of ancillary orders, including a lifetime driving prohibition.

(2) Analysis

46This court owes significant deference to the trial judge’s decision. The court will only intervene where (1) the sentence imposed is demonstrably unfit, or (2) where the sentencing judge committed an error in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and it appears from the decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, paras. 44, 51; R. v. Friesen, 2020 SCC 9, paras. 26-28.

47In R. v. Perry, 2025 ONCA 241, para. 27, this court emphasized that “mental health challenges may serve as a mitigating factor and lower the offender’s moral blameworthiness when there is a causal connection between the mental health challenges and the offences at issue”.

48In R. v. Batisse, 2009 ONCA 114, para. 38, this court explained that, where mental health problems played a “central role” in the commission of an offence, “deterrence and punishment assume less importance”:

[W]here offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive. [Citations omitted.]

49In R. v. Ellis, 2013 ONCA 739, paras. 116-117, this court reiterated that principle, emphasizing that mental illness is a factor to be taken into account in sentencing where it plays a role in the commission of the offence:

The authorities … indicate that it is not enough to determine that the offender had a mental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conduct in question and the impact of that finding on the appropriate sentence. The trial judge will consider whether there a causal connection between the offender’s mental illness and the commission of the offence and, if so, whether it diminished the offender’s culpability.

There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations.

50In this case, the trial judge certainly had regard to Mr. Lojovic’s bipolar disorder when sentencing him, but he did not approach this factor in accordance with the principles established in Batisse and Ellis.

51As set out in Batisse and Ellis, he should have considered whether Mr. Lojovic’s bipolar disorder played a central role in the commission of the offence, which it obviously did. Next, he should have considered whether this condition affected Mr. Lojovic’s moral blameworthiness. Finally, he should have considered whether, given the central role played by Mr. Lojovic’s mental disorder, there was a need for specific or general deterrence.

52Instead of approaching the inquiry from this perspective, the sentencing judge accepted that the bipolar disorder played a central role in Mr. Lojovic’s commission of the offence, but treated this as an aggravating factor – making matters “worse” – rather than a factor that could reduce his moral blameworthiness. In effect, the trial judge treated Mr. Lojovic’s bipolar disorder as an aggravating factor because he should have known better than to drive while manic.

53There is no doubt that, when Mr. Lojovic took his mother’s car, drove to Hamilton and sped erratically through the city, he was in a manic state caused by his bipolar disorder. Mr. Lojovic may be self-aware enough to know when a manic episode is coming and how to avoid harmful behaviour in such circumstances, but this does not increase his moral blameworthiness at the time of the offence. On the contrary, while he was aware of what he was doing and the consequences of those actions, his bipolar disorder played a central role in the commission of the offence and made it much harder for him to control his behaviour.

54Accordingly, it was an error in principle for the trial judge to treat Mr. Lojovic’s bipolar disorder as an aggravating factor.

55A sentencing error only justifies appellate intervention when it appears that the error had an impact on the sentence: Lacasse, at para. 44. In this case, it is evident that the trial judge’s treatment of Mr. Lojovic’s mental disorder impacted his sentence. Specifically, as reviewed above, rather than properly considering the role of Mr. Lojovic’s bipolar disorder on his moral blameworthiness when he committed the offence, the trial judge stated that his degree of responsibility was “total”.

(3) A Fit Sentence

56Having found that the trial judge made an error that had an impact on Mr. Lojovic’s sentence, it falls to this court to impose a fit sentence: Friesen, at para. 27.

57Mr. Lojovic argues that a fit sentence in this case would be a total sentence of five to six years. The Crown maintains that 10 years was a fit sentence.

58In my view, a total sentence of eight years would be appropriate in this case. I would break the sentence down as follows: five years for dangerous driving causing death, two years for failing to remain causing death and one year for breach of probation.

59There are several aggravating factors. Mr. Lojovic has a criminal record that includes two prior driving offences. In 2009, he was convicted of impaired driving, for which he was fined $1,300 and prohibited from driving for one year. He was also found guilty of dangerous driving in 2020, for which he received a conditional discharge and 18 months of probation, and another one-year driving prohibition. The offence in this case occurred while Mr. Lojovic was still on probation.

60In addition, as found by the trial judge, Mr. Lojovic’s offences had a devastating impact on Mr. Brott’s family and on the wider community. Mr. Brott was a well-loved and respected conductor, and his loss was felt well beyond his family and friends.

61There are also several mitigating factors. As mentioned, Mr. Lojovic has suffered from bipolar disorder for many years, and his condition clearly played a role in the commission of the offence. While there have been breaks in his compliance with treatment, he has consistently sought out treatment for his condition. He also expressed remorse for the offence and for Mr. Brott’s death.

62Mr. Lojovic’s sentence must be proportionate to the gravity of the offence and his degree of responsibility: s. 718.1 of the Criminal Code. This is a very serious offence that had tragic consequences. However, Mr. Lojovic’s moral blameworthiness is somewhat attenuated by his bipolar disorder.

63Proportionality also requires that Mr. Lojovic’s sentence be comparable to sentences imposed in similar circumstances on similar offenders. Mr. Lojovic and the Crown do not agree on the appropriate sentencing range for offences involving dangerous driving causing death. Mr. Lojovic suggests that the range of sentences for these offences is three to five years. The Crown submits that, because the maximum sentence for this offence was increased to life imprisonment in 2018, that range is no longer relevant. They also disagree over whether the ranges of sentences for impaired driving causing death and criminal negligence causing death are relevant.

64This case does not require resolution of these issues. However, I agree with the Crown that the 2018 change signals Parliament’s intention that sentences for dangerous driving causing death should increase and five years should not be seen as the top of the range. The circumstances of these types of offences vary significantly and each sentence must be tailored to the specific circumstances of each case: Perry, at para. 21. A sentence of five years for Mr. Lojovic’s conviction for dangerous driving causing death is nevertheless significant compared to sentences imposed post-2018 for similar offences: see, for example, Perry, R. v. Kalyan Trivedi, 2024 ONSC 3936, and R. v. Al Jalmoud, 2025 ONSC 1607.

65Normally, denunciation and deterrence are the primary goals in sentencing for dangerous driving offences: Lacasse, at paras. 73-76. However, as held in Batisse, where a mental disorder plays a central role in the commission of an offence, as it did in this case, the role of denunciation and general deterrence is diminished. In this case, given Mr. Lojovic’s prior driving offences, specific deterrence is important, but the sentence should nevertheless be tailored to his specific circumstances. These circumstances include an attenuated moral blameworthiness and the fact that, while he has two prior driving offences, he has never been incarcerated for those offences.

66The totality principle must also play a role in sentencing Mr. Lojovic. While the sentencing judge chose to give him three consecutive sentences, the court must be mindful of the overall length of his sentence to ensure that it is not unduly lengthy and harsh: Friesen, at para. 157; R. v. Simeunovich, 2023 ONCA 562, para. 27.

67In all the circumstances, I conclude that a total sentence of eight years is appropriate.

68Mr. Lojovic was in pre-trial custody for 514 days. The trial judge gave 871 days of credit for this time. The Crown submits, and Mr. Lojovic agrees, that this was an error. The proper calculation of Summers credit on a 1:1.5 basis is 771 days.

69Accordingly, I would replace the sentence imposed by the trial judge with a global sentence of 8 years, by reducing the sentence for dangerous driving causing death from 6 years to 5 years, and the sentence for failing to remain causing death from 3 years to 2 years. I would maintain the one-year sentence for breach of probation. All these sentences are to be served consecutively. From the 8 years, I would deduct 771 days for pre-trial custody, for a total net sentence of 5 years and 324 days.

70I would not interfere with any of the ancillary orders that were made by the trial judge, including the lifetime driving prohibition that the trial judge imposed. Those orders remain in effect.

D. Disposition

71I would dismiss the appeal from conviction. I would grant leave to appeal the sentence and allow the sentence appeal. I would substitute the 10-year sentence with an 8-year sentence less 771 days for pre-trial custody.