Court Information
Ontario Court of Justice
Date: January 4, 2017
Between:
Her Majesty the Queen
— AND —
Darya Selinevich
Before: Justice L. Pringle
Heard on: November 17, 2016
Reasons for Sentence released on: January 4, 2017
Counsel
Ms. S. Reid — counsel for the Crown
Mr. P. Bawden — counsel for the accused Darya Selinevich
PRINGLE J.:
1. Introduction and Overview
[1] Darya Selinevich is before me for sentencing. She has pleaded guilty to impaired driving causing the death of a cyclist, Zhi Yong Kang; failing to stop at the scene of an accident; failing to stop for police; refusing to provide a breath sample; and driving while disqualified.
[2] At the time of the offences on June 11, 2015, Ms. Selinevich was 22 years old. She had very recently pleaded guilty to a previous drinking and driving offence: one month earlier on May 12, 2015 she had admitted that she had been driving with over 80 mg of alcohol in 100 ml of her blood back in September 2013. She was sentenced to a $1200 fine for that offence, as well as a one year driving prohibition.
[3] On June 11, 2015, Zhi Yong Kang was riding his bicycle along Finch Ave West when he was struck and killed by Ms. Selinevich. He was 44 years old, and had a 14 year old son. The Victim Impact Statements provided by his brother and his former wife vividly depicted a man who was brilliant, eloquent, and had a "maverick personality". Yulian Liao was particularly moving in describing her former husband Zhi Yong Kang in his life, and exceptionally generous in her words to Ms. Selinevich now that he is gone.
[4] Sentencing is not meant to compensate for the value of the life that has been lost. Rather, it attempts to grapple with the appropriate punishment for the crimes that led to the loss of life. In cases of drinking and driving involving death, the law is primarily concerned with denunciation of the crimes and general deterrence of them. At the same time, but of secondary concern, there is room to recognize potential for rehabilitation of the offender.
[5] In this case the Crown, Ms. Reid, seeks a total sentence of 8 years. On behalf of Ms. Selinevich, Mr. Bawden submits that a sentence of 6 ½ years is sufficient to address the fundamental principles of sentencing.
[6] I have determined that the appropriate sentence is one of 7 years, less credit for pre-trial custody. There will be a 10 year driving prohibition. Let me explain the reasons for my decision.
2. The Offences
[7] On June 11, 2015, around 12.19 a.m., Zhi Yong Kang was riding his bicycle westbound on Finch Ave West in the curb lane approaching Tobermory Drive. This is a densely populated residential area. It was well lit. It did not have a marked bicycle lane.
[8] Mr. Kang's bicycle did not have any lighting or rear facing reflectors; however other motorists were able to see him.
[9] Ms. Selinevich was speeding along Finch Ave West in the curb lane, driving at approximately 110 km/h, at the time she hit Mr. Kang. The posted limit was 60 km/h. Mr. Kang was thrown from his bicycle and landed on a grassy area on the north side of Finch; his left leg was severed below the knee and landed on Finch Ave West. He was pronounced dead at the scene.
[10] Ms. Selinevich did not stop driving after the collision. She may have applied her brakes, but left no skid marks on the road. Her vehicle had been significantly damaged, including a shattered windshield on the right side, with biological matter from Mr. Kang's body embedded in it.
[11] Ms. Selinevich was observed by police driving northbound on Jane St. about 5 minutes later. She slowed briefly by a police car at Driftwood Ave, then continued. Another police car began to follow Ms. Selinevich. As PC Broad travelled in the curb lane to catch up to her, Ms. Selinevich swerved in front of him and cut him off. The officer dropped back, activated his lights and siren, and Ms. Selinevich slowed again briefly. She then picked up speed and continued on Jane St, reaching a speed of approximately 200 km/h. With police in pursuit, she ran a red light at Highway 7. She eventually turned into a commercial plaza at 7941 Jane St and fled from her vehicle on foot. In doing so, she left the car in motion but locked its doors. Officers gave chase, and she was arrested at 12.35 a.m.
[12] There was a very strong odour of alcohol coming from Ms. Selinevich's breath, and she now admits that she had consumed a significant amount of alcohol. Her eyes were glossy and red; she was unsteady on her feet; and her speech was slurred. Later, at the police station, she was advised of Mr. Kang's death and she spoke to duty counsel. She refused to provide a sample of her breath thereafter.
3. Victim Impact
[13] Yulian Liao described Zhi Yong Kang as a very intelligent man. He graduated from Peking (Beijing) University, regarded as the "Harvard of China". He amazed people with his knowledge and energy, and his incredible memory. It was part of his nature to observe closely and think deeply.
[14] Ms. Liao said her husband was serious and stubborn, frugal but also generous. She wrote that while Zhi Yong was clumsy with sports, he spent time playing soccer and riding his bicycle with his son. He loved his son very much.
[15] She described the pain she and her son feel at Zhi Yong's death by recounting an old story where a child asks a survivor, "Does it hurt very much to die?", and the survivor answers, "Yes, but it hurts a lot more to keep living". She said they are struggling to move on.
[16] At the same time, Ms. Liao wrote directly to Ms. Selinevich:
We hope she still holds opportunities for her career of becoming a paralegal. Above all, we hope she has more patience in whatever she might do in the future. We would like her to know we are immensely comforted by our family and friends surrounding us. We start to accept the truth: We must accept the things we cannot change, be grateful for the courage to change the things we can, and the wisdom to know the difference. That is our earthly life.
[17] Zhi Yong Kang's brother, Dong Kang, also wrote a moving Victim Impact Statement. Dong was the eldest child in the family, and at a young age helped his mother cook, clean and care for his siblings. Zhi Yong was his youngest brother and they shared a deep fraternal relationship. When Zhi Yong immigrated to Canada, he and his family moved in with Dong's family. When Zhi Yong and his wife divorced and Zhi Yong was depressed, Dong used to drive from Barrie to Toronto to visit his brother.
[18] Dong has been deeply hurt by his brother's death, including the manner of his death.
[19] Dong has suffered from depression and other health problems after Zhi Yong's death, which occurred only four months after the death of their father.
4. Ms. Selinevich
[20] Ms. Selinevich was 22 years old at the time of the offences, and is now 23. She graduated from high school with honours, and began to attend York University in 2011/2012 where she studied Law and Society. In 2012 she began working at a law firm as a co-op student, and then worked part time at a number of law offices. Having been successful in finding work, she withdrew from university, and was eventually hired as a full time law clerk/legal assistant in November of 2014.
[21] As indicated, she has a prior criminal record for a drinking and driving offence incurred only one month before the night of Mr. Kang's death. At the time of sentencing, she was fined $1200 and prohibited from driving a motor vehicle anywhere in Canada for 12 months. Ms. Selinevich agrees that after her conviction on May 12, 2015, she drove in contravention of the prohibition order on more than just the night of Mr. Kang's death.
[22] Ms. Selinevich also has a prior driving record: in 2012 she had 3 speeding tickets for driving at speeds well above the legal limit. In 2014 she was found guilty of disobeying a red light in 2013. At the present time, she owes $3084 in relation to her criminal and provincial driving related fines.
[23] She has been in custody since the time of her arrest.
[24] Since being incarcerated at Vanier, Ms. Selinevich has completed many workshops and programs relating to Life Skills, Healthy Relationships, Substance Abuse, Coping with Trauma and similar topics. She has also completed dozens of Bible Studies by correspondence with New Life Ministry, with an average grade result of 95.9%. She is currently taking courses in International Business and Entrepreneurial Studies.
[25] Ms. Selinevich was described by a representative of Elizabeth Fry as productive and cooperative, and a social worker at Vanier as compliant and cooperative, with no behavioural issues at the institution. The author of the Pre-Sentence report found her to be polite, cooperative, articulate and intelligent.
[26] The Pre-Sentence Report reveals that Ms. Selinevich was born in Russia. Her biological father was not involved in her life, and her mother married her step-father in 2006. Ms. Selinevich immigrated to Canada in 2006. She is a Canadian citizen.
[27] Beyond the prior drinking and driving conviction and the current charges before the court, Ms. Selinevich's issues with alcohol are not entirely clear. The parties agree that her mother testified at the bail hearing that in the past, her daughter would sometimes lock herself in her room and drink beer. However, at the time of the Pre-Sentence Report, her mother and step father reported that they had no concerns about alcohol abuse in the past.
[28] Mr. Bawden noted that Ms. Selinevich does not appear to be an alcoholic and has had no difficulty with alcohol withdrawal while in custody. His impression was that at the time of this offence she was in a social milieu with risk-taking friends, and that she tended to binge drink when she was distraught. (The Pre-Sentence Report noted that Ms. Selinevich said that four of her friends passed away in 2013/2014: two were murdered, one was killed in a car accident, and one died of an overdose). Mr. Bawden acknowledged that Ms. Selinevich would need to gain insight into the cause and effects of her drinking in order to be successful in future.
[29] Ms. Selinevich took responsibility for her role in the offences before the court and told the author of the Pre-Sentence Report that she has learned from her mistakes. She feels she is stronger, more mature, and has more patience since the time of the offence. Both she and her mother indicated that their relationship has become closer, and her mother said she will support her and help her daughter to think in a good and positive way.
5. Law and Analysis
[30] In the recent case of R. v. Muzzo, 2016 ONSC 2068, Justice Fuerst sentenced Mr. Muzzo to ten years in jail for four counts of impaired driving causing death and two counts of impaired driving causing bodily harm. After drinking and driving, Mr. Muzzo failed to stop for a stop sign and collided with a van in the intersection that had the right of way, killing three young children and their grandfather, and injuring the children's grandmother and great-grandmother. His blood alcohol content was almost three times the legal limit. Mr. Muzzo had no criminal record, but had ten prior speeding infractions. He pleaded guilty at the first opportunity and was extremely remorseful. He was highly regarded in the community and was found to be at low risk for recidivism.
[31] Justice Fuerst noted that recent case law from the Court of Appeal suggested two propositions in relation to sentence cases involving impaired driving causing death: first that these crimes will attract substantial penitentiary sentences even for first offenders of good character; and second, that sentences in this area have increased in recent years. She referenced the following cases at paras. 66-68 of her decision:
In R. v. Ramage, 2010 ONCA 488, the offender's car crossed four lanes of traffic and struck two oncoming vehicles. His passenger was killed, and a driver in another car was injured. At the time of the collision, the offender's blood alcohol concentration was two to three times the legal limit. He was convicted at trial. He had no prior criminal record, was described as an outstanding member of the community, and was deeply remorseful. He lived and worked in the United States, but would be barred from re-entry because of the convictions. The family of his deceased passenger forgave him and asked that he not be incarcerated. A sentence of four years in the penitentiary and a five year driving prohibition was upheld on appeal.
In R. v. Junkert, 2010 ONCA 549, the offender drove at a high rate of speed and failed to negotiate a turn in a residential neighbourhood. His car went onto the sidewalk, where it struck a car and a lamp pole before re-entering the roadway. In the course of its travel, the car struck and killed a jogger. The offender's blood alcohol concentration at the time was well above the legal limit. He was convicted at trial. He was a first offender. A sentence of five years in the penitentiary and a ten year driving prohibition was upheld on appeal.
In R. v. Kummer, 2011 ONCA 39, the offender drove at an extreme speed. He ignored a passenger who told him to slow down. After failing to stop at a stop sign, he entered the intersection. He slammed on his brakes, but struck a pick-up truck. Both vehicles caught fire. The driver of the pick-up truck was badly injured, but was able to get out of the vehicle. However, his young son and the son's friend remained trapped in the burning truck and died. A passenger in the offender's vehicle also died. The offender had a blood alcohol concentration more than twice the legal limit, which represented the consumption of fifteen to twenty beers. He had no prior criminal record, and there was evidence of his good character. He had been convicted previously of careless driving and failing to report an accident caused when he drove onto an airport runway after he had been drinking. The Court of Appeal for Ontario upheld a sentence of eight years in the penitentiary and a twelve year driving prohibition, imposed on the offender's guilty pleas.
[32] Since then, my colleague Justice Schnall imposed a sentence of 5 years in jail and a 10 year driving prohibition in the case of R. v. DeJong, 2016 ONCJ 418. Mr. DeJong was 24 years old with no criminal record. He had a very positive Pre-Sentence Report. On the evening of the offence, he and some friends engaged in an afternoon of drinking and then drove to pick up a friend. Mr. DeJong ran two stop signs and was swerving and driving in a risky and dangerous manner, including speeding up to 90 km/h in the area of the campus at the University of Western Ontario. While travelling at a high rate of speed around a sharp curve in the road, he lost control of his vehicle and struck an 18 year student as she walked on the sidewalk. The impact threw her 10 meters and she succumbed to her injuries two days later. Initially, Mr. DeJong left the scene, but returned shortly after and cooperated with police. His blood alcohol content was more than twice the legal limit.
[33] There are many aggravating factors in Ms. Selinevich's case that militate toward a sentence well above the range of 4-5 years for impaired driving causing death imposed in Ramage, Junkert and DeJong, which were all cases of first offenders. On the other hand, the magnitude of the consequences of Ms. Selinevich's crime was not as great as that in Kummer, where there were 3 victims killed (8 year sentence); or in Muzzo where Mr. Muzzo "made victims of four generations of one family" (10 year sentence).
[34] The aggravating factors in Ms. Selinevich's case are numerous:
she had a very fresh criminal record for a drinking and driving offence, as well as a history of speeding offences and disobeying a red light;
she was specifically prohibited from driving a motor vehicle at the time of the offence, and had driven more than once in contravention of that prohibition;
on this occasion, she chose to drive after consuming a significant quantity of alcohol, while her ability to do so was impaired;
she was speeding at almost twice the legal limit in a densely populated area on Finch Ave West;
although it was late at night and Mr. Kang did not have lights on his bike, other motorists were able to see him riding in the curb lane of traffic;
Ms. Selinevich did not stop after she hit Mr. Kang despite the fact that the impact caused significant damage to her car, including the right side of her windshield where Mr. Kang's body made contact;
she persisted in risky and dangerous driving to escape the police, including speeding at up to 200 km/h, swerving around a truck and running a red light;
when she fled, she left her car in motion and locked the doors;
after her arrest, and knowing that Mr. Kang had died as a result of the collision, she refused to provide a breath sample.
[35] The aggravating factors demonstrate that Ms. Selinevich's moral blameworthiness was extremely high: before, during and after the collision. She was a very recent prior offender for the same offence, with no regard for the sentence imposed in that matter. The consequences of her actions took the life of Zhi Yong Kang and have caused immense pain to his family. Fleeing the scene was perhaps a product of panic and Ms. Selinevich's immaturity, but it was also an act of cowardice in failing to face the consequences of her actions and to assist Mr. Kang after the collision. Her dangerous, high speed driving in attempting to evade the police put still others at risk, and her choice to refuse to provide a breath sample knowing that she Mr. Kang had died was a wilful avoidance of any determination of her actual blood alcohol content at the time.
[36] In mitigation, Ms. Selinevich:
has pleaded guilty to the offences and accepted responsibility for her actions;
has shown remorse and a willingness to learn from her crimes;
has pursued numerous courses and programs in custody and has done well in all of them;
has been cooperative and compliant in custody;
is described as polite, articulate and intelligent.
[37] Despite the magnitude of her crimes, it appears that Ms. Selinevich has potential for rehabilitation. She has a supportive family, and her mother is committed to help and guide her. While in custody she has been cooperative with the authorities. In light of her youth and intelligence, Ms. Selinevich has the means to succeed in future.
[38] Looking at all these factors in light of the case law, I believe that the appropriate sentence in totality is one of 7 years. While a heavy sentence is warranted for reasons of general denunciation and deterrence, and as a specific deterrent to Ms. Selinevich, it is important not to make the sentence so heavy as to crush hope or to extinguish the enthusiasm with which Ms. Selinevich has taken courses and applied herself to rehabilitation while in jail.
[39] I would apportion the sentence for each offence consecutively, as follows:
on the charge of impaired driving causing death: 5 ½ years. Unlike Mr. Junkert or Mr. DeJong, Ms. Selinevich was not a first offender;
on the charge of driving while prohibited: 3 months consecutive. This was a flagrant breach of a recent court order;
on the charge of failing to remain at the scene of the accident: 6 months consecutive. When Ms. Selinevich's car struck Mr. Kang on his bicycle, the situation was clearly dire for him, which she chose to ignore when she left the scene;
on the charge of failing to stop while being pursued by police: 6 months consecutive. Ms. Selinevich's efforts to avoid police after the collision were sustained and highly dangerous;
on the charge of refusing to provide a breath sample: 3 months consecutive. This was a deliberate choice to avoid anyone knowing her actual blood alcohol content.
6. Pre-Trial Custody Calculation
[40] By the date of her sentence, Ms. Selinevich will have spent 574 days in custody. The parties agree that she is entitled to credit at a rate of at least 1.5:1 in accordance with R. v. Summers, 2014 SCC 26.
[41] However, the Defence seeks additional enhanced credit due to the fact that Ms. Selinevich spent most of her time in Protective Custody (PC). EX 6 was a report from Vanier Centre for Women explaining that in PC, inmates are permitted out of their cells into the day area for only half of each day, in contrast to inmates in the General Population who are allowed out of their cells for the full day between 7 a.m. and 8.30 p.m. with the exception of two hours for meals.
[42] In addition, EX 6 reveals that in the PC area where Ms. Selinevich was held between June 15, 2015 and November 10, 2016, there were lockdowns for part or all of the day, on 158 days (or over 30% of the time she was there.) Lockdowns led to the cancellation of programs, visits or yard on 104 of those days (meaning there were cancellations of programs, visits or yard over 65% of the time there was a lock down).
[43] In R. v. Duncan, 2016 ONCA 754, the Court stated at paras. 6 and 7:
We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s.719 (3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.
While the pattern of "lockdowns" endured by the appellant is worrisome, without further evidence as to the effect of those conditions, we cannot say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit.
[44] Here, Mr. Bawden was candid in acknowledging that Ms. Selinevich's transfer into PC was done with her concurrence, after she felt threatened as a result of a fight with another inmate in General Population. However, he submitted that the incident was not her fault, and noted that EX 6 confirms she was not charged with any misconduct.
[45] Further, the Defence conceded that despite the numerous lockdowns, Ms. Selinevich was able to complete many of her Bible Study programs via correspondence. As well, during the summer of 2016, there were so many lockdowns that Elizabeth Fry had to resort to offering some of their programs via correspondence, in which Ms. Selinevich eagerly participated.
[46] Nonetheless, the Defence submits that the combination of PC, repeated lockdowns and the resulting cancellation of in-person programming as documented in EX 6 meant the conditions of incarceration were particularly harsh, and submits that Ms. Selinevich should be given modest enhanced credit of 1.6:1 or 1.7:1.
[47] I agree. While Ms. Selinevich was able to take positive rehabilitative steps despite the repeated lockdowns and cancellations of programming, there can be little dispute that spending time in PC was particularly harsh. Through no fault of her own, Ms. Selinevich was locked in her cell for twice the amount of time each day that an inmate in General Population would have been. This significant additional restriction on her liberty distinguishes this case from Duncan.
[48] Accordingly, I will grant Ms. Selinevich enhanced credit at the rate of 1.6:1, or a sentence of 919 days already served (574 x 1.6).
7. Summary
[49] On today's date the sentence will be:
count 4, impaired driving causing death: 5 ½ years less pre-trial custody credit = 3 years (2007 - 919 = 1088 days)
count 1, drive while disqualified: 3 months consecutive
count 5, failing to remain at the scene of an accident: 6 months consecutive
count 6, failing to stop for police: 6 months consecutive
count 7, refusing to provide a breath sample: 3 months consecutive
[50] Therefore, the totality of the sentence on top of pre-trial custody today is 4 ½ years.
[51] I will further impose a driving prohibition of 10 years on Ms. Selinevich, and make an order for DNA in relation to the secondary designated offences in each of counts 1, 4, 5 and 6. The mandatory victim surcharge in these matters is $200 for each count that is $1000. I will extend the time for payment of the fine if Ms. Selinevich submits the necessary application.
[52] I want to thank Ms. Reid and Mr. Bawden for their very thorough and helpful presentation of the case.
Released: to the parties on December 8, 2016; in court on January 4, 2017
Signed: Justice Leslie Pringle