Court File and Parties

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

Sara MacDonald, for the Crown

— And —

Milco Puvtoski

R. Tomovski, for the defendant(s)

Heard: January 19, February 6, 12, 2015

FELDMAN J.:

Conviction and Factual Findings

[1] I found Milco Puvtoski guilty after trial of Operation Over 80. He was involved in a collision with a motorcyclist, Lisa Gray, in an intersection at Highway 401 and Kennedy Rd. in Scarborough. I accepted the evidence of a forensic toxicologist who put the blood-alcohol concentration of the defendant at the time in the range of 120-170 mgs.

[2] I found it probable that Ms. Gray entered the intersection from the highway off-ramp on an amber, rather than a red, light. Given that on the evidence I am unable to resolve this as a fact to a near certainty, it is of little assistance in the criminal context in determining fault.

[3] However, I accepted the testimony of Sam Kodsi, an accident reconstructionist called by the defence, that Mr. Puvtoski was travelling northbound on Kennedy Rd. facing a red light at 55-56 kmh five seconds prior to impact and that he failed to apply his brakes until one second before the collision.

[4] In relation to the significance of this latter evidence, the toxicologist explained that driving is a divided-attention task extremely sensitive to the impairing effects of alcohol, which is a central nervous system depressant that causes sedation. She said that this would inevitably impact negatively on a driver's reaction-time choices when behind the wheel.

[5] I relied, in addition, on the principle in R. v. Letford, at para 22, that permits the court to weigh this expert evidence on the question of the degree of impairment of a person's ability to drive. I did so in the context of the circumstances of the accident and Mr. Kodsi's testimony.

[6] In the result, I was satisfied on all the evidence to the requisite standard that the defendant's manner of driving permitted the inference, and I found as a fact, that he was operating his motor vehicle with his level of awareness and reaction-time choices diminished to the degree that his ability to drive was at least slightly impaired by alcohol and that he bore some responsibility for the accident having occurred: see R. v. Laroque (1988), 5 M.V.R. (2d) 221 (Ont. C.A.). I judicially stayed the Operation Impaired charge given my finding on the Over 80 count.

Victim Impact

[7] Lisa Gray suffered catastrophic and life-threatening injuries that were and continue to be debilitating. She has front lobe brain damage that affects her short-term memory and leaves her struggling to find words, to problem-solve and to multi-task, all cognitive deficits. Her right eye is disfigured and limits her ability to read. She endures daily physical pain and has significantly decreased mobility and body coordination. Her recovery has been slow and her rehabilitation painful, the latter of which continues to this day with no known end date.

[8] As a result, Ms. Gray has been let go from a managerial position she found fulfilling and is, as well, at risk of losing her condominium. She has accumulated debt, carries severe anxiety and is socially isolated. She can no longer be active in a variety of outdoor activities that were important to her. She is now dependent on others for some of her needs and tasks.

[9] Ms. Gray read her statement to the court about these life-altering injuries and emotional stress. It was delivered with candor and dignity. It was unsettling to hear her say, "I feel that I am a shadow of what and who I was previously and battle with that every day which causes me to feel low self-esteem and depression".

[10] The words of this brave woman highlight once again the "tragic effects and devastating consequences" for innocent victims that flow all too often when thoughtless people drink and drive: see R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 16.

Offender's Background

[11] Mr. Puvtoski has no prior criminal antecedents. He is of otherwise good character. He is a former refugee who since arriving in Canada in 1989 has worked hard to support his family. He started his own business as an independent trucker over a decade ago. He has strong family support. Friends and former colleagues wrote about his good nature and character. It is inevitable that this conviction will put his business in jeopardy.

Positions of the Parties on Sentence

[12] Ms. MacDonald, for the prosecution, submits that in light of the court's finding that the defendant's driving was a contributing factor in the collision, a sentence in the upper intermittent range, an elevated driving prohibition and 12 months probation would meet the principle of general deterrence, set out as paramount in R. v. McVeigh, [1985] O.J. No. 207 (Ont. C.A.), for serious cases of this kind.

[13] Ms. MacDonald says her position reflects a range of sentence below that set out in the authorities for more serious related offences: see R. v. Rai, [2007] O.J. No. 3841 (Ont. C.J.), where the defendant was sentenced to 14 months following a guilty plea to Operation Impaired Causing Bodily Harm and where the victim suffered grave injuries. She says this provides an element of fairness in the sentencing process here by taking into account that she did not proceed on the basis of proving causation ultimately found as a fact by the court.

[14] Mr. Tomovski, for the accused, submits that I should view the Crown's decision in proceeding on a lesser charge as having disclaimed causation as an essential element the defence had to address in its conduct of the trial. He asserts that it would be unfair at this stage to consider the accident and injuries as aggravating features on sentence, in effect, he says, imposing a disposition for a more serious charge.

Is it Fair to Consider the Accident and Bodily Harm as Aggravating Factors on Sentence?

[15] There is a statutory basis for considering the accident and injuries as aggravating factors. Code s. 718.2 indicates that a sentence should be increased to account for aggravating circumstances and that evidence the offence had a significant impact on the victim, including their health and financial situation, shall be deemed to be aggravating circumstances. As well, s. 724(1) permits a court to find as fact any information disclosed at trial that has been proved beyond a reasonable doubt.

[16] In referring to these sections, MacPherson J.A. said in R. v. Balcha, [2004] O.J. No. 1217 (Ont. C.A.), at para 54, that a sentencing judge is entitled to consider all relevant factors in imposing sentence, including the degree of responsibility of the offender. Of significance, however, the court also held, at para 55, that it would be unfair for the Crown to advance a fact at the sentence hearing that is specifically disclaimed in the trial process.

[17] There are examples of such disclaimers in the authorities. In R. v. Brown, [1991] 2 S.C.R. 518, the defendant was charged with Dangerous Driving Causing Bodily Harm and Death. The defence argued that the driving was not causally connected to the death or injuries. Although the jury convicted only of Dangerous Driving simpliciter, the driver was sentenced as if causation had been proved. Justice MacPherson in Balcha, at para 36, interpreted the judgement of the Supreme Court in allowing an appeal from that sentence to mean that a sentencing judge cannot ignore or disagree with the clear factual implication of a verdict by the trier of fact. I respectfully agree with this interpretation.

[18] In R. v. Doerkson (1990), 53 C.C.C. (3d) 509 (Man. C.A.), the accused was originally charged with Impaired Driving Causing Death. Following negotiations, the Crown accepted a guilty plea to Impaired driving simpliciter, in effect, explicitly disclaiming causation as an essential element of the prosecution's case and therefore as a potentially aggravating factor on sentence, as MacPherson J. pointed out in discussing this case in Balcha, at para 44.

[19] In the case at bar, the defendant was originally charged with Impaired Operation and Operation Over 80 Causing Bodily Harm. The Crown proceeded on lesser offences that excluded consideration of causation, she says, because at the outset she was of the view that she was unable to prove that essential element beyond a reasonable doubt. Put another way, as the Crown expressed it, she believed that on the evidence available to her at the commencement of the trial there was no reasonable prospect of conviction on the more serious charges.

[20] In the circumstances, Ms. MacDonald exercised her discretion to act fairly in the circumstances as she is obliged to do and "lay an appropriate charge in light of [her] assessment of all the relevant circumstances", in effect, a tacit disclaimer of an essential element of the more serious charge in the perceived absence of sufficient evidence of causation.

[21] I accept the submission of the Crown that at the outset unknown conditions in the intersection at the time of the collision made proof of causation problematic. There was no clear evidence of bad driving. The colour of the traffic signals for both drivers was uncertain, as was the speed of the motorcycle prior to the collision. As well, the Crown had only raw data speed of the accused's vehicle at various distances leading up to the crash.

[22] Mr. Kodsi was called as an expert in accident reconstruction to analyze this data on behalf of the accused in order to establish that the accident, regardless of the driver's impairment, was unavoidable. It would seem this evidence was necessary to firm up the inference of no bad driving and raise a reasonable doubt that the defendant's ability to drive was impaired by alcohol. As it turned out, the calling of this witness carried risks for the defence.

[23] It was unfortunate for Mr. Puvtoski's case that his witness interpreted the data in a manner that permitted the inference the defendant was travelling too fast in the intersection, in effect, opening up the question of causation. This interpretation was not included in Mr. Kodsi's report tendered in advance of trial nor brought out in examination in chief, but was conceded only when the witness was pressed on this point in cross-examination. I don't accept on this evidence that the Crown ought to have foreseen this fact in issue prior to trial, as suggested by the defence.

[24] In the circumstances, I found that causation had been proven. The Crown appropriately raises the question of fairness in considering this aggravating fact in sentence. I agree that it would be unfair were I to sentence Mr. Puvtoski as if for a more serious offence as that was not the case he came prepared to meet.

[25] However, the finding of causation as here leads me to the conclusion that it would also be unfair to the prosecution, given the manner in which proof of causation unfolded, as well as a fiction to ignore the fact of the accident and injuries as linked to the defendant's impaired ability to drive. I will not consider a range of sentences for the more serious offence but rather take into account those aggravating features in the context of a conviction for Operation Over 80 simpliciter.

General Deterrence and Sentencing Principles

[26] The emphasis on general deterrence set down by Mackinnon A.C.J.O. in McVeigh remains relevant. He pointed out that it is the conduct, not just the consequences of that conduct, that is the criminality punished. He encouraged judges to impose sentences that would make it very much less attractive for the drinker to get behind the wheel. He asserted that every drinking driver is a potential killer.

[27] He went on to say the following:

"Members of the public, when they exercise their lawful right to use the highways of this province, should not live in fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving."

[28] This is a case at the more serious end of offences of this nature given the aggravating features apparent in the evidence. While the defendant is a first offender and warrants consideration for his solid work and family life, it is necessary to give emphasis on these facts to the principal of general deterrence where the consequences of this criminal conduct are so dire.

Sentence

[29] Mr. Puvtoski will be sentenced to 30 days. Given his personal and business responsibilities that sentence may be served intermittently. He will be taken into custody and released today to return to the jail at 7:30 p.m. on Friday and will be released the following Monday at 6 a.m. He will serve his sentence each weekend similarly until it is completed. As well, he will be on probation while serving this sentence, the only term of which is that he will attend at the jail with no alcohol in his system. In addition he will be placed on probation for 12 months on terms to be discussed with counsel. I am not persuaded that an enhanced license prohibition is necessary.

[30] I wish to express my appreciation to counsel for their submissions and assistance.

Released: February 24, 2015

Signed: "Justice L. Feldman"