Court Information

Ontario Court of Justice

Date: 2018-03-29

Court File No.: Toronto 4817-998-16-75003254-00

Parties

Between:

Her Majesty the Queen

— And —

Joseph Kirkpatrick

Judicial Officer and Counsel

Before: Justice R. Rutherford

Counsel:

• John Pearson, for the Crown
• Brian Greenspan, for the accused Joseph Kirkpatrick

Hearing Dates and Judgment

Preliminary Hearing: December 18, 2017, January 10, 2018

Guilty Plea & Sentencing Submissions: February 23, 2018

Reasons for Judgment Released: March 29, 2018

Judgment

RUTHERFORD J.:

Introduction

[1] A preliminary hearing commenced on December 18, 2017. On February 23, 2018, Mr. Kirkpatrick re-elected his mode of trial and pleaded guilty to dangerous driving causing death. Exhibits were filed. Case law was provided. The Crown, Mr. Pearson, read in a victim impact statement. Sentencing submissions were made and the proceedings were adjourned to March 29, 2018 for my reasons.

Circumstances of the Offence

[2] On July 2, 2016 Mr. Kirkpatrick and the victim Ms. Vieira attended an afternoon baseball game. Sometime thereafter they decided to go for a drive in Mr. Kirkpatrick's car, a Porsche 911. Mr. Kirkpatrick was driving. Ms. Vieira was his passenger. Mr. Kirkpatrick drove in an easterly direction in the curb lane along Queens Quay East to Lower Jarvis Street. The speed limit is 50 KM. Once at the intersection Mr. Kirkpatrick stopped to the right of another eastbound vehicle that was waiting in the curb lane. When the traffic light turned green Mr. Kirkpatrick proceeded and immediately moved in front of the eastbound vehicle. He continued in the curb lane at an excessive rate of speed, speed that was well over the speed limit. The evidence shows that after 113 meters Mr. Kirkpatrick hit bumps in the road that sent his car airborne. Mr. Kirkpatrick lost control. When the car hit the ground it veered left in a slight clockwise direction. The vehicle mounted the north curb and began to rotate. As it rotated, the rear driver's side struck the southwest corner of 200 Queens Quay East. The car continued to rotate striking a Ford Escape that was parked along the south wall of the building. The force of the collision caused the Ford Escape to land in the westbound curb lane of Queens Quay. It faced in a westerly direction. Police and emergency medical services (EMS) arrived on scene. Both Ms. Vieira and Mr. Kirkpatrick were transported to the hospital.

[3] Ms. Vieira sustained life threatening head injuries. She was placed on life support. On July 12, 2016 life support was removed. Ms. Vieira died shortly thereafter.

[4] Mr. Kirkpatrick sustained major non-life threatening injuries that required significant medical intervention.

Circumstances of the Offender

[5] Mr. Kirkpatrick is 33 years old. He has no prior criminal record. He has a prior driving record which includes eight convictions for speeding.

[6] Mr. Kirkpatrick finished high school and then attended the Toronto School of Business. For seven years he worked for Research in Motion (RIM) and then later worked for another company as a technical account manager. More recently he has become the owner and operator of a company called Mammoth Mugs. It manufactures and distributes sports industry water bottles.

[7] Mr. Kirkpatrick is single. He has a five year old son whom he financially supports. Mr. Kirkpatrick is active in his son's life. Casey Thiessen, the child's mother, provided a letter to the Court attesting to Mr. Kirkpatrick's positive relationship with their son. Mr. Kirkpatrick is described as "an active and irreplaceable participant in Mason's life..."

[8] Mr. Kirkpatrick has three siblings. He has enjoyed their support through the criminal trial process.

Crown's Position

[9] Mr. Pearson on behalf of the Crown submits that a sentence of 18 months followed by a two year driving prohibition is the appropriate sentence. Mr. Pearson argues that the circumstances require that general deterrence and denunciation be emphasized. He argues that the public must be assured that Courts will impose exemplary sentences when an individual, whether of prior good character or not, engages in the kind of dangerous behaviour that Mr. Kirkpatrick engaged in. Mr. Pearson points out that not only did Ms. Vieira's friends and family lose a loved one but the community as a whole lost a valued member. Mr. Pearson argues that 18 months properly reflects the aggravating and mitigating features in the case. Mr. Pearson referred to case law to support his position.

Defence Position

[10] Mr. Greenspan submits that the appropriate sentence is 9 to 12 months. He agrees that a two year driving prohibition is warranted. Mr. Greenspan acknowledges that the consequences of Mr. Kirkpatrick's conduct are tragic and incarceration is required to properly address deterrence and denunciation. He submits however that when the Court is considering the quantum of sentence the Court must be mindful of the circumstances surrounding the driving as well as the mitigating features in the case. Mr. Greenspan reminds the Court that Mr. Kirkpatrick is a first offender who pleaded guilty. He points out that Mr. Kirkpatrick is genuinely remorseful and has never forgotten that he is responsible for his friend's death. Mr. Greenspan argues that general deterrence and denunciation can be adequately addressed by the imposition of a 9 to 12 month sentence. He also relied on a number of cases to support his position.

Victim Impact

[11] Ms. Vieira was in the prime of her life. She was a successful lawyer who had just made partner at her law firm. She leaves behind many who love her and profoundly feel her loss. In the victim impact statement, her friend writes that Ms. Vieira was "…the voice of reason, a rock, a confidant and a source of inspiration to most individuals she encountered." She goes on "…Her family and friends find it difficult to impossible to recover from this loss. They have lost their advisor, their sounding board and lifeline." Further "With her passing at the age of 35 she will no longer be the glue to her family. She will no longer be able to aid her friends nor have the ability to influence new acquaintances." These words and emotions demonstrate how Ms. Vieira's death has had devastating consequences to many.

Aggravating and Mitigating Factors

[12] In this case I find that Mr. Kirkpatrick's prior driving record to be an aggravating factor. Mr. Kirkpatrick has eight prior convictions for speeding from 2005 to 2013. In three of those cases Mr. Kirkpatrick travelled in excess of 40 km over the speed limit.

[13] The area where this offence occurred is a busy part of the city. There are bike paths and sidewalks. It is not unusual to see a steady flow of vehicular, pedestrian and bike traffic. Mr. Kirkpatrick's driving put the whole community in immediate danger.

[14] In mitigation Mr. Kirkpatrick pleaded guilty. Although Mr. Kirkpatrick's guilty plea came after a preliminary hearing it is nonetheless meaningful. It not only saves the time and expense of a trial but it gives Ms. Vieira's family and friends the certainty of knowing that the trial process is over and that Mr. Kirkpatrick has accepted criminal responsibility.

[15] Mr. Kirkpatrick is genuinely remorseful. This is clear from his statement in Court. Not a day goes by that Mr. Kirkpatrick does not think about his friend and the role he played in her death.

[16] Mr. Kirkpatrick is employed and lastly he enjoys the love and support of his family.

The Law

[17] The law is clear that general deterrence and denunciation are the predominant sentencing principles to be considered in a case of this nature.

[18] The Crown relies predominantly on R. v. Laine, 2015 ONCA 519. Mr. Pearson argues that the facts and circumstances in Laine are similar to those in the case at bar. In Laine there were two deaths and the offender's driving was slightly more egregious than that of Mr. Kirkpatrick. Mr. Laine had no criminal or driving record. Although Mr. Kirkpatrick has no criminal record he has multiple convictions for speeding. The Court of Appeal in Laine held that the appropriate sentence was two years less one day.

[19] In a 2000 endorsement in Her Majesty the Queen v. J.L. the Court of Appeal held that a range of sentence is difficult to establish in criminal negligence causing death cases. The Court found that so much was dependent upon the nature of the reckless driving and the blameworthiness of the conduct. The Court states at paragraph three "…The more the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required." The Court finds that the consumption of alcohol increases severity. I note that in the case before me there is no suggestion that alcohol was a factor in the dangerous driving. Speed appears to be the sole factor. I note however that in the case at bar users of the road were put at serious risk of harm.

[20] In R. v. Lam (2003), 180 CCC (3rd) 127 (Ont. C.A.) at paragraph eight the Court held that dangerous driving causing death "… generally attracted lighter sentences than those imposed in the criminal negligence causing death cases." However the court also held that where the driving involved the consumption of alcohol and reckless conduct the offender would be subject to a more severe sentence. As stated there is no suggestion that alcohol played a role in Mr. Kirkpatrick's conduct.

[21] In R. v. Vaziri, [2004] O.J. No. 327 (C.A.), the offender's sentence was reduced from 2 years less one day to 15 months after having been convicted after trial of dangerous driving causing death and dangerous driving causing bodily harm. Mr. Vaziri drove his taxi at a high rate of speed. He lost control and swerved across both lanes of oncoming traffic. He collided head on with another vehicle. Mr. Vaziri had no criminal record and had a modest driving record including one conviction for speeding. The Court of Appeal noted that Mr. Vaziri was of good character, had a minimal driving record, the bad driving was brief in nature and alcohol played no role in the criminal conduct. In the case at bar Mr. Kirkpatrick pleaded guilty. He has no criminal record but has prior convictions for speeding. The bad driving occurred in seconds and was the result of excessive speed. No alcohol was involved.

[22] In R. v. Mansour, [2002] O.J. No. 1658 (Sup. Ct.), McIsaac, J. found it aggravating that two people were killed by the offender's dangerous driving. By making such a finding was not an attempt to apportion value on one life over another but was an attempt to reflect the real tragic consequences of Mr. Mansour's criminal conduct. He was sentenced to 21 months in total. The Court of Appeal upheld the sentence.

[23] In R. v. Manahan, 2010 ONCJ 360, the offender lost control of his car due to speed. The car went airborne and struck a large boulder. Mr. Manahan's passenger was instantly killed. Neither alcohol nor drugs played a role in the driving and the driving persisted over a short period of time. Mr. Manahan had no criminal record and was a youthful first offender. The Crown sought a 12 month sentence. A conditional sentence was imposed. A conditional sentence is no longer an available sentencing option, however many of the circumstances in this case are similar to the circumstances in the case at bar. I am mindful however that unlike Mr. Kirkpatrick, Mr. Manahan had no prior driving record and was very young.

[24] In R. v. Ryazanov and Ross, 2008 ONCA 667, a conditional sentence of two years less one day was imposed by the trial judge and upheld by the Court of Appeal. In that case two offenders travelled at high rates of speed switching from lane to lane over a distance of one and a half kilometers. One of the vehicles struck a taxi cab killing the driver. Both men pleaded guilty, were young and had no criminal record. The circumstances surrounding the driving in Ryazanov et al. is more egregious than in the case before me.

Analysis

[25] The criminal law is a system of values. In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. The sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sanction that the Court imposes should have one or more of the following objectives:

• to denounce unlawful conduct,
• to deter the offender and other persons from committing offences,
• to separate offenders from society where necessary,
• to assist in rehabilitating offenders,
• to provide reparations for harm done to victims or the community,
• to promote a sense of responsibility in offenders and
• acknowledgement of the harm done to victims and to the community.

[26] How much emphasis a Court places on each of these objectives will vary according to the nature of the crime and the circumstances of offender.

[27] A life was lost due to Mr. Kirkpatrick's conduct, conduct that was avoidable, conduct that was brazen and bold. In the brief period that Mr. Kirkpatrick drove a terrible tragedy occurred. His friend was killed. Ms. Vieira's family and friends are devastated. As stated in the victim impact statement "Her family and friends find it difficult to impossible to recover from this loss … Family, godchildren and friends have been left with an irreplaceable void." No sentence I impose will ever fill that irreplaceable void.

[28] The sentence must however assure the community that Courts firmly denounce conduct like that exhibited by Mr. Kirkpatrick. The public must be confident that Courts send a message that public safety can never be compromised, especially when the dangerous conduct occurs in a public area. A meaningful jail sentence must be imposed.

[29] At the same time I must also balance the community's abhorrence to this crime with the personal circumstances of the offending party.

[30] Mr. Kirkpatrick is 33 years old. He is not a youthful offender however he is in the prime of his life. He has a successful business. He has the love and support of his family. He is a responsible father. Not only does he financially support the child but he also plays a big role in the child's moral and emotional upbringing. According to the child's mother, Mr. Kirkpatrick's absence will be felt by their child because of the close bond shared between them.

[31] Mr. Kirkpatrick has no criminal record. He has a driving record and although it does not hold the same weight as a criminal record I cannot ignore that between 2005 and 2013 Mr. Kirkpatrick has eight prior speeding convictions and that speed was at the root of Mr. Kirkpatrick's driving on this occasion. I do note however that the record is 5 years old, 3 years old at the time of the offence, and that just three of the convictions involved excessive speeding. I also note that they occurred at a time when Mr. Kirkpatrick was younger, less mature and not a father.

[32] Mr. Kirkpatrick pleaded guilty. Mr. Kirkpatrick's remorse is obvious and genuine. The words he expressed in court reflect this. I am confident that the memory of the role he played in Ms. Vieira's death will ensure that he maintains a positive and safe lifestyle.

[33] After balancing the aggravating and mitigating features in this case and after considering the authorities provided I am of the view that general deterrence and denunciation can be properly addressed by the imposition of a sentence of 14 months incarceration followed by probation for 18 months.

Sentencing Order

[34] Mr. Kirkpatrick will perform 150 hours of community work. He is articulate and intelligent. He has been through a tragic event. It seems to me that he could take what he has learned and give back to the community by speaking to high school students and/or other youth organizations about his experience in the criminal justice system in order to prevent another needless death. I make this recommendation.

[35] Mr. Kirkpatrick will report to a probation officer within two business days of his release from jail and will report thereafter as directed by his probation officer. He will sign the necessary consents and releases required by his probation officer.

[36] He will perform the community service at the direction of his probation officer.

[37] The mandatory conditions of the probation order will apply.

[38] Mr. Kirkpatrick will also be prohibited from driving anywhere in Canada for two years. I note that Mr. Kirkpatrick has been prohibited from driving for the period of his judicial interim release.

[39] Dangerous driving causing death is a secondary designated offence. The defence is not opposed to a DNA order. It is so ordered.

Released: March 29, 2018

Signed: Justice Rutherford