Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-18-10232

Date: 2020-01-07

Between:

HER MAJESTY THE QUEEN

• AND -

KAMAU KENRICK DAVIS-LOCKE

Before: Justice Peter D. Tetley

Reasons for Sentence

Heard: September 17, December 4-6, 2019

Released on: January 7, 2020

Counsel:

V. Szirmak — counsel for the Crown

J. Stilman — counsel for the Defendant

TETLEY J.:

Background

[1] Early Saturday morning, during the first long weekend in August, five-year-old Lux Peyton Gomez and members of her immediate and extended family were enroute to what should have been an enjoyable summer outing to Sauble Beach.

[2] As the Gomez family made their way westbound on Highway 9 toward the northbound 400 highway exit, the sun was up. Lux advised her mother that she was still tired and asked if it would be all right if she slept a little longer.

[3] One day later, Lux would be declared to be without discernable brain activity. On August 9, 2018 she was removed from life support and pronounced dead as a consequence of catastrophic injuries sustained as a result of a head-on collision with a motor vehicle operated by 24-year-old Kamau Davis-Locke. All of the other members of her family would be hospitalized.

[4] Approximately four months later, once the results of a blood test had been analyzed, Kamau Kenrick Davis-Locke would be charged with a number of criminal offences as a result of the events of August 4, 2018.

[5] On September 17, 2019, Mr. Davis-Locke entered pleas of guilty to the offence of impaired operation causing the death of Lux Peyton Gomez, contrary to s.255(3) of the Criminal Code, and two counts of impaired operation causing bodily harm to her parents Mark and Abigail Gomez, contrary to s.255(2). Submissions on sentence were received on December 4-6, 2019.

[6] Mr. Davis-Locke does not have a criminal record. He enjoys strong family support and is profoundly remorseful for the consequences of his decision to drink and then operate a motor vehicle, in excess of the posted speed limit, while in a fatigued state.

[7] There is no sentence that will restore what has been lost. There is no penal consequence that will restore the Gomez family or lessen the enduring heartache occasioned by the needless and untimely death of Lux Gomez. As Fuerst J., notes in R. v. Muzzo:

While the criminal justice system can deter and denounce, it is ill-suited to make reparation for harm of the magnitude involved in this case.

[8] The public danger represented by impaired drivers is not new as reflected in the comments of MacKinnon A.C.J. in the 1985 Ontario Court of Appeal decision, R. v McVeigh, a case involving consideration of a 29-year-old first offender who struck and killed a 14-year-old boy while driving impaired. In increasing the 21-month sentence imposed by the trial judge to a sentence of three years imprisonment, McKinnon J. reflected on the emphasis, in the imposition of sentence in such matters, on the principles of denunciation and deterrence:

The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the 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.

[9] More than 25 years ago, Cory J. reflected on the continuing societal impact of impaired driving in R. v. Bernshaw:

16 Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization [pg. 1102], drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recently noted:

Impaired driving is a serious crime. Every year thousands of Canadians are killed and many more injured in traffic-related accidents. Alcohol is a contributing factor in an average of 43% of these cases (Traffic Injury Research Foundation -- D. R. Mayhew et al. [Alcohol Use Among Persons Fatally Injured in Motor Vehicle Accidents: Canada 1990] 1992:33).

[10] More than a generation removed from the sentiments expressed in McVeigh and Bernshaw, the death and destruction occasioned by those who choose to drink and drive continues, despite enhanced law enforcement initiatives and increasing penal sanctions, courts continue to emphasize the principles referred to long ago in "McVeigh".

Factual Circumstances

[11] Sometime after 10:00 p.m, on Friday, August 3, 2018, Mr. Davis-Locke, in the company of a friend, Tia Rothwell-Jackson, drove from Mr. Davis-Locke's home in Newmarket to Toronto. There they met some friends and attended a downtown Toronto nightclub. During the evening, Mr. Davis-Locke consumed alcohol.

[12] Sometime after 6:00 a.m., on Saturday, August 4, 2018, Mr. Davis-Locke drove his vehicle from the Yonge and Eglinton area of the city of Toronto enroute back to his residence in Newmarket. He had little sleep prior to driving. Alcohol remained in his system from the drinking that had occurred earlier.

[13] Just after 7:00 a.m., the Volvo S60, operated by Mr. Davis-Locke exited Highway 400 at Highway 9 and proceeded to drive eastbound toward Newmarket. Highway 9 is also known as Davis Drive.

[14] Davis Drive, at that location, is a four-lane highway with two eastbound lanes and two westbound lanes, together with a centre turning lane separating the through lanes by solid yellow lines. At the time, the posted speed limit on Davis Drive was 80 kilometres an hour.

[15] As a result of a combination of alcohol in his system and fatigue, occasioned by the fact he had been up late the night before, Mr. Davis-Locke fell asleep behind the wheel of his vehicle as the vehicle proceeded eastbound. The Volvo then drifted into the oncoming westbound lanes of Davis Drive in the vicinity of the Cardinal Golf Club, at 2740 Davis Drive.

[16] At the time Mr. Davis-Locke fell asleep, the vehicle he was operating was travelling above the posted speed limit.

[17] Ultimately Mr. Davis-Locke's vehicle collided with three others.

[18] The first vehicle struck by Mr. Davis-Locke's Volvo was a Ford Taurus driven by Ms. Debra Fitzgerald. At the time Ms. Fitzgerald's vehicle was struck, it was being operated in the right-hand lane westbound on Davis Drive. Prior to the point of impact, Ms. Fitzgerald had observed the vehicle in front of her as to veer off and then noticed Mr. Davis-Locke's vehicle proceeding toward her. She was unable to avoid the collision and the force of impact with the Volvo, as it sideswiped Ms. Fitzgerald's vehicle, caused her vehicle to spin out. It ultimately came to rest straddling the curb lane of westbound Highway 9, west of the driveway to the Cardinal Golf Club.

[19] The outer part of the rear door of the Fitzgerald vehicle was torn off as a consequence of the force of the impact.

[20] Ms. Ariel Harriman was operating a Chevrolet Cobalt westbound on Davis Drive. Her attempts to swerve her vehicle out of the way to avoid being hit by the Volvo were not successful. As a result of being sideswiped, her Cobalt sustained severe damage to the passenger side and ultimately spun out of control, coming to rest on the shoulder of the eastbound lanes of Davis Drive.

[21] Ms. Harriman sustained pain to her ribs and abrasions on her knees. She was transported to McKenzie Health Center. The injuries were not serious.

[22] The final vehicle struck by the Volvo was a Honda Civic carrying the Gomez family. Mark Gomez was driving. His wife Abigail was in the front passenger seat. Their three children, Adrian (12), Lux (5) and Dustin (3) were in the back seat. Lux and her little brother Dustin were in car seats and wearing seatbelts.

[23] Mr. Gomez was not aware that the Volvo had struck two other vehicles and was headed straight toward them in their own lane of travel. The first two vehicles in the Gomez family caravan were able to swerve out of the way. The Volvo struck the Gomez Honda head on, causing catastrophic damage resulting in the front end of the Gomez vehicle being crushed and causing the Volvo to lose power and come to a stop.

[24] All of the members of the Gomez family sustained injuries. Mark Gomez sustained multiple fractures and lacerations. His injuries included a fractured pelvis, a ruptured spleen, and injuries to his bowels and colon. These injuries resulted in significant internal bleeding and were deemed life-threatening. He was immediately transported to Sunnybrook Hospital in critical condition and given a low chance of survival. Mark Gomez underwent two emergency surgeries in relation to his significant internal injuries. He remained in the hospital until he was discharged to a rehabilitation facility nine days later.

[25] Abigail Gomez suffered multiple fractures to her right arm, and injuries to her leg, knee, sternum and vertebrae. She was also transported to Sunnybrook Hospital and underwent spinal surgery that involved the insertion of screws to fix her fractured arm. She too remained in hospital for the next nine days until discharged to a rehabilitation facility on August 13, 2018.

[26] Lux Gomez was the most seriously injured and was deemed to be in life-threatening critical condition.

[27] Lux sustained two spinal fractures and severe trauma to her brain. She was vital signs absent at the scene of the collision for approximately 20 minutes.

[28] All three children were transported to the Hospital for Sick Children in Toronto. Adrian Gomez sustained a sore back and was vomiting blood. Dustin Gomez incurred trauma to his head resulting in his brain bleeding and swelling.

[29] On August 6, 2018, Lux Gomez was deemed to be without function in her brain. On August 9, 2018, she was pronounced dead. The cause of death was determined to be a complete separation of two of the vertebrae in her spine occasioned as a result of the force of the impact of the August 4th collision.

[30] Mr. Davis-Locke was unconscious when the police arrived. He was taken to a local hospital where blood was drawn during the emergency triage process. A blood sample was later seized by the York Regional Police pursuant to a court order and submitted to the Centre of Forensic Sciences ("CFS") for analysis.

[31] On November 28, 2018, CFS authored a report concluding that the concentration of alcohol in Mr. Davis-Locke's blood ("BAC") was 87 milligrams of alcohol in 100 millilitres of blood at the time the sample had been drawn.

[32] On January 21, 2019, CFS authored a further letter of opinion which stated that the projected blood-alcohol concentration of Mr. Davis-Locke's blood, at or between approximately 6:00 a.m. and 7:13 a.m. (the time period prior to and during the collisions), was between 87 to 137 milligrams of alcohol in 100 millilitres of blood.

[33] According to the opinion of a toxicologist from the CFS, Mr. Davis-Locke's ability to operate his motor vehicle was impaired by alcohol, at the time of the collisions on August 4, 2018, with impairment with respect to driving becoming significant at a BAC of 50 milligrams of alcohol in 100 millilitres of blood and increasing from that point onward.

[34] Mr. Davis-Locke's impairment by alcohol is acknowledged, by virtue of the Agreed Statement of Fact supporting his pleas of guilty, to be a "significant contributing cause – one beyond the deminimus range – of the death of Lux Gomez and the bodily harm sustained by both Mark and Abigail Gomez".

[35] On December 10, 2018, Mr. Davis-Locke turned himself in to 1 District Headquarters of the York Regional Police Service. He was subsequently arrested and held for a bail hearing. He was released on a recognizance of bail with conditions that same day.

The Victim Impact Statements

[36] Victim impact statements were provided by Mark and Abigail Gomez and their eldest son Adrian. In addition, impact statements were filed by eight other individuals including family friends, Lux's kindergarten teacher, cousins, aunts and Lux's maternal grandmother. All described Lux as a loving child with an infectious smile and a big heart. Lux loved art, dancing, singing and dressing up. Her favourite colour was pink. She was characterized as being a joyous child who brought love and happiness to others. She had expressed a desire to become a doctor. Her maternal grandmother described Lux as being "smart and confidently beautiful".

[37] Those that knew her and loved her variously characterized Lux Peyton Gomez as being "loving, kind, caring, mindful, understanding, sweet, polite, interesting and obedient".

[38] Abigail Gomez read her victim impact statement into the record. She described the anguish of having to make a decision to take her daughter off life support at the Hospital for Sick Children when she herself was hospitalized at Sunnybrook as a consequence of the serious injuries she had sustained in the collision.

[39] Abigail Gomez testified in the company of a support worker, her now four-year-old son Dustin, at her side. She described the profound sense of grief and loss occasioned by the death of her daughter and the enduring nature of the resulting pain. She noted that prior to the collision:

…Our family was perfect until the tragic action accident happened to us…My family was so happy and perfect (it is) now incomplete and in deep sorrow.

[40] She described the impact that Lux's death has had on both Adrian and Dustin and the personal consequences of the tragedy to both herself and her family.

[41] Mark Gomez recounted the experience of severe pain in his abdomen. In due course, he would undergo reconstructive surgery to repair both his large and small intestines.

[42] He described Lux as being "…the life of any family get together or parties." Lux was viewed by her father as being very supportive and affectionate.

[43] As a consequence of her death, the Gomez family life is not the same. All of the members of the family are referenced as experiencing a profound and lasting sadness.

The Auflick Report

[44] Mr. Jack Auflick, PhD., a senior consultant for the U.S. based Engineering Systems Inc. ("ESi"), was called by the defence as an expert in the field of Human Factors in Engineering Psychology.

[45] Following a voir dire, Dr. Auflick offered evidence with respect to an assessment of what were described as "human factors" that might have bearing on Mr. Davis-Locke's operation of the Volvo S60 automobile.

[46] In addition, Dr. Auflick was asked by the defence to consider the possibility that the speed of the Volvo S60 may have inadvertently increased, as a consequence of the application of force to the accelerator pedal of that motor vehicle, after Mr. Davis-Locke had fallen into a period of what was described as "microsleep", a brief transitory state of sleep that occurs without notice.

[47] Finally, Dr. Auflick offered his view as to the propensity of Mr. Davis-Locke to fall into a microsleep given the fact his hours of sleep had been curtailed over the course of the prior evening and the fact his blood-alcohol concentration level was between 87 and 137 milligrams per cent at the time of the collisions.

[48] Microsleeps and drowsy driving were characterized by Dr. Auflick as being a "very common but dangerous phenomena", with young males between the ages of 16 and 29 being among the group most at risk for "drowsy driving and drowsy driving crashes". Dr. Auflick concluded, on the balance of probabilities standard, that Mr. Davis-Locke likely depressed the accelerator pedal as he fell into a microsleep. This conclusion was based, at least in part, on certain published experimental research literature that had demonstrated a positive correlation between increased vehicle speed and lack of sleep. Based on the reviewed research studies, Dr. Auflick concluded that:

…It is possible that Mr. Davis-Locke, with his muscular physique, depressed the accelerator as he fell into a microsleep. This may explain the 144 kilometre an hour vehicle speed in the Volvo in the second prior to the 1st recorded event but this cannot be determined with certainty.

[49] Mr. Davis-Locke's lack of sleep, in combination with the ethanol in his system, was concluded to increase his likelihood of falling asleep as he drove on the morning of the collision.

[50] Dr. Auflick also concluded, after the initial collision with the Ford Taurus and deployment of the airbag in the Volvo, "…high levels of hormones created a cognitive tunnel vision and likely an inadvertent full activation of the throttle."

Kamau Davis-Locke

[51] Mr. Davis-Locke is 24 years of age. He is single and has no children. He presently lives with his mother in Newmarket. His mother is a university professor and his father, a lawyer by profession, lives in British Columbia.

[52] Mr. Davis-Locke is a first offender and has never displayed any behavioural issues of concern. He is a good athlete and is viewed, by those who know him best, as a respectful and conscientious young man. Mr. Davis-Locke comes from a loving family. He enjoys the support of a wide circle of friends and is held in high esteem by a number of individuals who filed letters of support. These individuals include former coaches, teachers, a pastor and several close family friends.

[53] These individuals have described Mr. Davis-Locke as possessing a strong character and leadership qualities. He is viewed as being principled, compassionate, intelligent, respectful, considerate and mindful of others.

[54] He is known to possess a strong sense of social justice and is characterized as being a deep thinker and insightful.

[55] He has been raised with high moral values and a strong belief in the principle of fairness and concern for others. By all accounts, he has positively contributed to the community. In due course, he plans to devote his career to assisting at-risk youth.

[56] These sentiments are reinforced and confirmed by the positive Presentence Report authored by Probation and Parole Officer Rhea Bedford.

[57] The report confirms that Mr. Davis-Locke is the product of a good home. He has primarily resided with his mother in Newmarket after his parents separated when he was two years of age. He has enjoyed a close and loving relationship with both parents. He has lived a pro-social life and has excelled as a basketball player. He is currently employed at a newspaper call centre.

[58] There is no evidence that he has ever experienced difficulties with either alcohol or the abuse of illicit substances.

[59] A number of individuals who know Mr. Davis-Locke provided input in the Presentence Report. They confirmed that he is a respectful and responsible individual from a loving family.

[60] In the Presentence Report, Mr. Davis-Locke expressed remorse and regret for the consequences of his decision to drive on the morning of August 4, 2018. He accepts full responsibility for the collision that occurred and the loss of life and serious physical injuries that resulted. Mr. Davis-Locke reiterated these sentiments in a compelling and heartfelt statement during the sentencing process when he stated:

On August 4th, I made the worst mistake of my life and I robbed the world of someone who in their short life obviously had an undeniable positive impact and potential. I'm beyond sorry for all the pain I've caused Lux's family and friends through my irresponsible actions and there is not a day that goes by where I don't wish I could change what happened on August 4th.

Position of the Parties

Crown Submissions

[61] On behalf of the Crown, Ms. Szirmak submits a sentence of 6 to 7 years should be imposed in relation to the count of impaired driving causing death. A sentence of four years concurrent, in relation to each count of impaired driving causing bodily harm, is also submitted as being appropriate on consideration of the mitigating and aggravating factors present in this case, consideration and application of the principles of sentence referenced in s. 718, 718.1 and 718.2 and the guidance provided by courts of superior jurisdiction in like circumstances.

[62] The Crown seeks a driving probation of 10 years, to take effect after the expiration of Mr. Davis-Locke's jail term.

[63] In formulating this sentencing position, Ms. Szirmak submits that the primary sentencing objectives in cases of this kind are denunciation and general deterrence. Ms. Szirmak acknowledges that Mr. Davis-Locke is remorseful. His remorse and regret are referenced by his pleas of guilty which were entered at an early stage and the content of what is fairly assessed as being a positive Presentence Report.

[64] The Crown acknowledges that Mr. Davis-Locke is a first offender with a supportive family and strong social network. He is acknowledged to be a low risk to reoffend.

[65] The Crown notes that many similar offences have been committed by individuals of similar unblemished backgrounds. These individuals have led pro-social lives, have no criminal antecedents, or driving records, and are youthful.

[66] While acknowledging that Mr. Davis-Locke has led a productive life, has a sound educational and work history, enjoys the support of both his parents and an extended group of committed friends, the aggravating factors in this case are contended to justify the imposition of sentence in the range proposed.

[67] The aggravating factors identified by the Crown include the following: Mr. Davis-Locke's decision to drink and subsequently operate a motor vehicle while fatigued at the time the concentration of alcohol in his blood exceeded the legal limit; the operation of the vehicle despite the fact that the conditions of his licence prohibited him from having any alcohol in his system; the distance travelled on both a 400 series highway and a major regional thoroughfare; the fact the defendant fell asleep while operating a vehicle in such circumstances being reasonably foreseeable or at least reckless given his limited amount of sleep the prior evening; the generalized threat to public safety; the resultant extensive property damage; and, the infliction of serious personal injury, life-threatening bodily harm and the occasioning of a death of a child.

[68] The impact of the loss of Lux Peyton Gomez and the circumstances of her passing are noted as profound. The agony of making the decision to remove the child from life support, in circumstance where both parents were incapacitated as a consequence of their own serious injuries and prevented from being with their child at the time of her passing, and the resulting, never-ending grief, has impacted all members of the Gomez family and those who knew and loved Lux Peyton Gomez.

[69] Ms. Szirmak notes the recent escalation of sentences for impaired driving causing death prior to R. v. Muzzo, and thereafter, and the continuing problem of drinking and driving in York Region in particular, as further support for the Crown's sentencing position.

[70] Many of the cases cited by the defence are viewed as predating authorities such as Ramage, Junkert, Kummer, Muzzo and recently, the Ontario Court of Appeal decision of R. v. Altiman. Based on Fuerst J.'s comments at paragraph 69 of the Muzzo, the Crown submits those earlier decisions have limited precedential value as sentencing guidelines in this case:

69 The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society's abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines.

[71] The Crown's request for a ten-year period of driving probation, following the completion of Mr. Davis-Locke's jail term, is not resisted by Mr. Stilman.

Defence Submissions

[72] On behalf of Mr. Davis-Locke, Mr. Stilman submits that a sentence totaling three years should be imposed on consideration of the aggravating and mitigating circumstances present in this case.

[73] Mr. Stilman submits that the extent of Mr. Davis-Locke's "blameworthiness" is distinct from that characterizing many of the cases cited by the Crown.

[74] The degree of Mr. Davis-Locke's culpability is viewed as being less than those who chose to immediately drive after consuming alcohol, with much higher blood alcohol concentration levels, in discernible noncompliance with the rules of the road.

[75] Based on the evidence presented by Dr. Auflick, the defence submits that the high rate of speed, immediately prior to the impact with the first vehicle, may well have been as a consequence of an involuntary or unintentional action occasioned by the unexpected onset of a period of microsleep.

[76] The defence resists and contests the Crown submissions that "local conditions", as defined by the Supreme Court of Canada in R. v. Lacasse, at paragraphs 87 to 105 of that decision, are a relevant sentencing consideration in furtherance of the Crown's contention that impaired driving continues, with seemingly unabated frequency, in York Region.

Statutory Considerations

[77] The objectives and principles of sentencing are governed by statute. Section 718 of the Criminal Code directs that a criminal sentence meet the following objectives:

(i) The denunciation of the unlawful conduct;

(ii) The deterrence of both the offender and others like minded (general and specific deterrence);

(iii) As a last resort, separation of the offender from society;

(iv) Rehabilitation of the offender;

(v) Reparation for the harm done to victims or to the community; and,

(vi) The promotion of a sense of responsibility in those who offend and acknowledgement of the harm they have done.

[78] The principle of proportionality is set out in section 718.1 of the Criminal Code. That principle provides that a sentence must be proportionate to the gravity or seriousness of the offence and the degree of responsibility of the offender.

[79] Section 718.2 lists a number of other principles of sentence. Of significance here, it provides that a sentence should be increased, or alternatively decreased, to reflect both the aggravating and mitigating circumstances relating to the offence and/or the offender.

[80] Another principle of sentence in section 718.2 directs that a criminal sentence should be consistent with, or similar to, sentences imposed on like offenders, who commit similar offences, in similar circumstances.

[81] The law is clear, in cases involving drinking and driving resulting in death or serious bodily harm, the most important, or paramount sentencing objectives, are denunciation and general deterrence. This consideration is referenced by Fuerst J. at paragraph 58 of R. v. Muzzo:

58 In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. [11] General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. [12] General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties. [13]

[82] As discussed during the sentencing hearing, there are no mandated sentencing directives that apply to cases of this kind. The significant differences between the sentencing dispositions in the cases cited by the Crown and those proffered on behalf of Mr. Davis-Locke by the defence reflect this fact.

[83] The imposition of sentence in a criminal case requires determination of a just sanction on application of the referenced sentencing principles. That determination requires consideration of the seriousness of the offence, the offender's degree of responsibility, the specific circumstances of the case and the circumstances of the offender. All of these factors must be taken into consideration and balanced in a fair and just fashion.

[84] This task is made more difficult in circumstances where the gravity of the offence is so profound and the offender, a youthful and otherwise law-abiding individual.

Analysis

The ESi Report

[85] During the course of his testimony, Dr. Auflick reviewed the content of his Supplemental Report dated July 2, 2019 and the basis for concluding that Mr. Davis-Locke "likely fell into a period of microsleep" prior to his vehicle crossing the median into oncoming traffic. Limited sleep, the night before, was concluded to increase the likelihood of Mr. Davis-Locke experiencing an episode of microsleep with the resulting swerve into opposing lanes of traffic concluded to be an unintentional event. The lack of sleep combined with alcohol in Mr. Davis-Locke's system was concluded to increase the likelihood of an incident of microsleep occurring while he was driving.

[86] Dr. Auflick also concluded that the 144 kilometre an hour rate of speed, as recorded by the Volvo's in-car computer, immediately prior to impact with the Ford Taurus automobile operated by Debra Fitzgerald, likely occurred as a consequence of an involuntary depression of the accelerator pedal after Mr. Davis-Locke had fallen asleep.

[87] In the report, Dr. Auflick references that the opinions and conclusions offered "…are stated to a reasonable degree of engineering and scientific certainty." When asked by Ms. Szirmak as to how certain he was, particularly in relation to the issue of the prospect of acceleration occurring while in a state of microsleep, Dr. Auflick testified that the degree of certainty was at least 51 per cent or "more likely than not".

[88] Defence counsel submits that the conclusions contained in the ESi report provide a plausible and scientifically based explanation for the fact the defendant fell asleep and accounts for the excessive rate of speed prior to the first collision. In the absence of any evidence as to the speed at which the vehicle was being operated prior to that time, the opinion offered by Dr. Auflick is submitted to reduce the degree of blameworthiness that might otherwise attach to the intentional operation of a motor vehicle on a regional highway at a rate of speed of more than 60 kilometres over the posted speed limit.

[89] In response, Ms. Szirmak submits that even if the evidence of Dr. Auflick and the opinions referenced in the ESi supplementary report are accepted in totality, the blameworthiness attached to Mr. Davis-Locke's decision to operate a motor vehicle in circumstances where he had recently consumed alcohol and had gotten little sleep remain.

[90] In considering the conclusions in the ESi Supplemental Report, it is difficult to accept that the determination relating to the rate of speed are based on a "reasonable degree of engineering and scientific certainty". The fact studies have shown that acceleration can occur following the onset of a brief and unexpected period of microsleep does not form a basis, in my view, for concluding that is what occurred here. This conclusion is determined to be a matter of conjecture rather than science.

[91] Logic would dictate that it is equally plausible that Mr. Davis-Locke's motor vehicle was being operated at a rate of speed of 144 kilometres an hour seconds before it came in contact with Ms. Fitzgerald's Ford Taurus and before Mr. Davis-Locke fell asleep. In the absence of any evidence with respect to the rate of travel prior to the point of impact and given the fact that there is only one recorded measurement of speed, it is difficult to accept Dr. Auflick's conclusion that the 144 kilometre an hour vehicle speed was likely occasioned by Mr. Davis-Locke's depression of the accelerator after he fell into a microsleep.

[92] According to the ESi report, the electronic control module data in Mr. Davis-Locke's Volvo automobile only provides five seconds of accelerator pedal activation and speed data. Five seconds of speed data is conceded not to allow the conclusion to be drawn that Mr. Davis-Locke was consciously speeding at that rate of speed for "a protracted period of time prior to swerving across the traffic lanes". Similarly, it would seem self-evident that this limited data would also be insufficient to support the conclusions that acceleration took place only after Mr. Davis-Locke fell asleep.

[93] By the Agreed Statement of Fact, Mr. Davis-Locke has acknowledged operating his motor vehicle at a rate of speed in excess of the posted limit. In the end, I accept the Crown's submission, that as far as the ESi report addresses the issue of speed, the distinction drawn between the potential for an unintentional period of acceleration following the onset of sleep versus the intentional operation of a motor vehicle at an undefined rate of speed in excess of the posted limit prior to the onset of sleep, is a distinction without a difference in law.

[94] As Martin J. stated long ago, in the Ontario Court of Appeal judgment R. v. MacCannell, albeit within the context of consideration of an appeal relating to the offence of operating a motor vehicle with a blood-alcohol concentration level of in excess of the legal limit, the essential elements of the offence are the consumption of alcohol, followed by an act of driving or being in care and control of a motor vehicle.

[95] At paragraph 16 of the MacCannell decision, Martin J. notes as follows:

16 I am of the view that the necessary fault or mens rea is supplied by proof of the respondent's voluntary consumption of the liquor, and it is not necessary to prove, in addition, that when he drove the car he either knew that his blood alcohol level exceeded what was permissible, or was reckless with respect to his blood-alcohol level being in excess of that permitted. See R. v. Penner (1974), 16 C.C.C. (2d) 334 at pp. 337-38; R. v. Haverstock (1979), 6 C.R. (3rd) 8. I observe that under s. 6(1) of The Road Traffic Act, 1972, c. 20 (the English counterpart of s. 236 of the Code) it has been held that it is unnecessary to prove that the accused knew that his blood alcohol concentration was excessive, or considered that it might be, but merely that it was over the prescribed limit in fact: see Smith and Hogan, Criminal Law, 4th ed. p. 475.

[96] Applying these considerations to the facts in issue here, the fault or blameworthiness to be ascribed to Mr. Davis-Locke relates to his decision to drive in circumstances where he knew that he had recently consumed alcohol and had little sleep. Mr. Davis-Locke would also have been aware of the restriction inherent in his authorization to drive given his status as a novice driver and the holder of a G-2 licence, a restriction that limited his lawful entitlement to operate a motor vehicle to circumstances where he had no alcohol in his system.

[97] These same sentiments are reflected in the insightful letter of support for Mr. Davis-Locke provided by Dr. Karl James, who was a professor in the graduate program in sociology at York University, where Dr. James notes as follows:

I am well aware of the seriousness of the offence with which Kamau was charged, and I've had an opportunity to discuss this with him. As a parent, I have shared with him that I understand how young people take chances that they believe are in keeping with being responsible and that "nothing will happen". Unfortunately, at times such thinking is incorrect; and in this case, it was bad judgment and miscalculation which led to the situation which Kamau has found himself.

[98] The letter goes on to note that Mr. Davis-Locke's has reflected on the decisions that he made that evening and thought about what is referenced as "…the flawed judgment about his capability and confidence."

[99] These insightful comments reflect the state of all the law that applies to this tragic circumstance. It was the decision to drive and the consequences of that decision that ultimately led to Mr. Davis-Locke falling asleep and veering into oncoming traffic. The rate of speed prior to that event occurring remains an unknown, subject only to the acknowledgement in the Agreed Statement of Fact, that Mr. Davis-Locke was operating his motor vehicle above the posted speed limit at the time he fell asleep and the fact his vehicle was travelling at more than 60 kilometres in excess of the posted limit when it struck the first vehicle.

Local Conditions

[100] In R. v. Lacasse, the Supreme Court of Canada reiterates that denunciation and deterrence are particularly relevant sentencing considerations in relation to impaired driving offences "that might be committed by ordinary law-abiding people".

[101] The court also notes at paragraphs 87 to 105 that the frequency of a type of offence in a particular region can be a relevant factor for the sentencing judge to take into consideration in determining sentence.

[102] While the frequency of the offence in a given area is not an aggravating factor, judges can take judicial notice of the context in which they perform the duties of their office by referencing what is defined is the "court rolls" (presumably the daily court dockets) and sources of uncontroversial public information. This authorized form of judicial notice is contingent on an opportunity being given for the parties to make representations on the subject if weight is to be attached to the frequency of a certain type of crime in a given region or what is termed the "local reality".

[103] Ms. Szirmak submits that impaired driving and the consequences of impaired driving remain a continuing and growing problem in York Region. In support of this contention, reference is made in the Crown's casebook to a number of recent cases, post-dating Muzzo, in which deaths have occurred.

[104] Mr. Stilman resists the crown's submission that the frequency of the offence in York Region is a relevant factor for consideration on sentence here. The fact that Ramage, Muzzo and Junkert all took place in York Region is submitted to be a matter of happenstance and chance. Similarly, local cases that have followed Muzzo, R. v. Singh, a unreported decision of McPherson J., dated August 27, 2019; R. v. Nielsen, 2019 ONCJ 324, a March 21, 2019 sentencing judgment of Kenkel J.; R. v. Tolouei, 2019 ONCJ 609, an August 30, 2019 decision of Rose J., and R. v. Xia, [2019] O.J. No. 4618, a September 9, 2019 decision of Bourque J., are viewed by the defence, in the absence of any additional evidence or reliable statistical analysis, as constituting aberrations not necessarily reflective of an ongoing local issue relating to impaired driving or motor vehicle related deaths where drugs and/or alcohol were a factor.

[105] The sentiments expressed by Mr. Stilman on behalf of his client in relation to this issue do not appear to be supported by the judges in Singh, Nielsen, Tolouei or Xia.

[106] In Singh, McPherson J. dealt with an incident, that occurred on August 29, 2016, in which a mother and her four-year-old child were killed by a 30-year-old impaired driver who was operating a motor vehicle at the time his own infant child was present in the vehicle. Mr. Singh was 30 years old, had no criminal record and no driving record. His blood-alcohol concentration level was between 124 to 154 milligrams of alcohol in 100 millilitres of blood. He was found guilty of two counts of impaired driving causing death following trial. In imposing a sentence of 5-1/2 years, McPherson J. noted that impaired driving has been and continues to be a persistent problem across the country, this province and in the communities of York Region.

[107] In R. v. Nielsen, Kenkel J. imposed a five-year sentence following a guilty plea to a charge of criminal negligence causing death in relation to a November 12, 2017 incident in which a 20-year-old took his stepfather's motor vehicle without consent. While travelling at approximately 200 kilometres an hour in an 80 kilometre an hour zone, his vehicle crossed over into oncoming traffic where it was involved with a head-on collision, killing Stuart Ellis, a married father of a 14-month-old child, whose wife was pregnant at the time.

[108] Mr. Nielsen had a blood-alcohol concentration level of 45 milligrams per cent and three drugs in his system. A five-year custodial disposition was imposed.

[109] At paragraph 6, Kenkel J., who has presided in this region for almost 20 years, offered the following comment:

6 As the Crown Attorney for York Region, Mr. Tait has had to make similar submissions in R v Ramage [2008] O.J. No. 192 (SCJ) affirmed 2010 ONCA 488, and R v Muzzo 2016 ONSC 2068. Despite the national notoriety of those cases, and the significant impact each had on this community, impaired driving and risk-taking driving remain a significant cause of death in this community. The prevalence of an offence within a particular community is a relevant factor on sentence -- R v Lacasse 2015 SCC 64 at para 89

[110] R. v. Tolouei, involved a novice driver who smoked marijuana and consumed alcohol before driving. Mr. Tolouei was operating his motor vehicle at 168 kilometres an hour in a 50 kilometre an hour zone when he struck another motor vehicle, killing the passenger in that vehicle. He pleaded guilty to criminal negligence causing death and was sentenced to five years and nine months in jail with Rose J. offering the following comments, at paragraph 24 of the sentencing decision, with respect to the prevalence of this type of offence in York Region:

…It was only 3 years ago that Regional Senior Justice Fuerst said "... the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded." See R. v. Muzzo 2016 ONSC 2068 (Ont. S.C.J.) at par. 2. The Muzzo tragedy followed another traffic carnage case by 6 years, see R. v. Ramage 2010 ONCA 488. From the perspective of a trial judge in this Courthouse, it appears that the pace of traffic carnage cases is not decreasing but increasing. Earlier this week my sister Justice McPherson gave reasons for sentence on an impaired driving causing death case, see R. v. Singh (unreported). R. v. Neilson (supra) was only 5 months ago…

[111] Of note, the offender in Tolouei occurred 16 days after the incident in issue here today.

[112] In R. v. Xia, a case involving consideration of a charge of impaired driving causing death with an October 25, 2018 offence date in which a mother and three children were killed, Bourque J. addressed the issue of local conditions in paragraph 10 of his sentencing judgment as follows:

10 York Region has the unenviable distinction of having over 1,000 new cases of drinking and driving in each of the past several years. That is some 20 new drinking and driving cases every week. The people of York Region should be appalled. That each and every drunk driver is a potential killer is a well-known fact. Within the past 6 months, 3 drivers have been sentenced (in this courthouse) for being impaired behind the wheel of a car and killing an innocent person. Ms. Xia is now the fourth. Just three years ago, a drunken driver blew through an intersection and killed 4 members of a family, 3 of them children. A sentence of 10 years in prison doesn't seem to have had a salutary effect upon the drivers of York Region.

[113] These local cases underscore the observations of Fuerst J. in Muzzo that impaired driving "remains a persistent problem in York Region". While this is not an aggravating factor, it serves to reinforce the need to impose a sentence that denounces and deters those who would drink and drive.

Aggravating Factors

[114] I turn now to consider the aggravating and mitigating circumstances in this case. These factors are important determinants in the consideration of sentence.

[115] A number of aggravating factors are present. They include the following:

(i) Mr. Davis-Locke made a choice to drink and drive after having very little sleep. The reason for doing so does not form part of the Agreed Statement of Fact although his passenger, in her discussions with the author of the Presentence Report, suggests that the motivation may simply have been to ensure the car he was driving made its way back to Newmarket. Obviously, in retrospect, there were alternatives. He could have waited or arranged for someone else to drive the car. He took a risk that his driving would not endanger members of the community. Unfortunately, that risk materialized with tragic consequences.

(ii) Mr. Davis-Locke operated a motor vehicle in circumstances where he would have been aware, as a novice driver, that the conditions of his licence prohibited him from having any alcohol in his system. While he may not have been aware that his blood-alcohol concentration level was above the legal limit, he would certainly have been aware that he had been drinking a few hours before he decided to drive.

(iii) Mr. Davis-Locke drove in circumstances where he knew he was extremely fatigued. He operated his motor vehicle over a significant distance from the vicinity of Yonge and Eglinton, northbound on a 400 series highway to a major regional road on his way to Newmarket. In such circumstances, the fact that he fell asleep before swerving into oncoming traffic at a high speed was a reasonably foreseeable consequence arising from his decision to drive;

(iv) The vehicle was travelling at 144 kilometres per hour, far in excess of the posted 80 kilometres an hour speed limit, when it struck the first motor vehicle and Mr. Davis-Locke had been speeding before the collision occurred. The possibility of rapid acceleration occurring after Mr. Davis-Locke fell asleep is not viewed as serving to reduce his level of blameworthiness given the fact he was aware that he was fatigued. In these circumstances, the risk of falling asleep at the wheel and the dangers that circumstance might occasion to others are concluded to be reasonably foreseeable.

(v) Mr. Davis-Locke's blood-alcohol concentration level of between 87 to 137 milligrams of alcohol in 100 millilitres of blood is over the legal limit;

(vi) Mr. Davis-Locke killed a five-year-old child and caused serious injuries to the child's parents. He placed the lives of at least nine others, including himself, at risk and occasioned significant loss of property;

(vii) The impact on the Gomez family has been understandably devastating. The impact is also been felt more broadly within the community as referenced by the number of victim impact statements filed during the sentencing hearing;

(viii) Mr. Davis-Locke has a Highway Traffic Act record that includes a conviction for speeding some three months prior to the occurrence of this incident.

Mitigating Considerations

[116] There are also a number of important mitigating considerations:

(i) Mr. Davis-Locke is genuinely remorseful. He entered a plea of guilty without a preliminary hearing or trial having been conducted. That is a tangible and meaningful sign of contrition. He has accepted responsibility for his crimes;

(ii) Mr. Davis-Locke has no previous criminal record. He is a youthful first offender;

(iii) He has a positive support network that includes his parents, relatives, friends and others. His Presentence Report is positive and reflects the extensive support that Mr. Davis-Locke enjoys in the community; and

(iv) Mr. Davis-Locke has led a pro-social life as reflect in the positive Presentence Report and the numerous letters of support filed on his behalf. He is a low risk to re-offend and has made a positive contribution to the community.

[117] In determining sentence, I have reviewed and considered the submissions of counsel, the evidence presented during the sentencing hearing, the exhibits filed during that hearing, the Presentence Report and the cited case law.

[118] I have also reflected on the aftermath of Mr. Davis-Locke's ill-advised decision to operate a motor vehicle on the morning of August 4, 2018 and the tragic consequences of that decision to five-year-old Lux Gomez, her parents and siblings.

[119] Mr. Davis-Locke did not intend to cause such devastation but the insidious nature of alcohol is such that it clouds the exercise of prudent and measured judgment, the kind of judgment Mr. Davis-Locke is known to possess. The death of Lux Peyton Gomez is a tragedy. It was also avoidable.

[120] All of this mayhem occasioned in a jurisdiction where just three years before, another young man, with no criminal record, killed four members of the same family, including three children. While the facts in that case are acknowledged to be much more aggravated, the unfortunate reality is that impaired driving continues to occur with alarming regularity, seemingly unfettered by the imposition of ever-increasing penal sanctions.

[121] Earlier in this judgment, reference was made to four cases in this court, since Muzzo, where alcohol played a role in the deaths of five other individuals including a child. None of these offenders had criminal records, a characteristic shared by every offender referenced in the Crown's case book.

[122] With due regard to the jurisprudence prior to Ramage, Junkert and Muzzo, I conclude the Supreme Court of Canada in Lacasse, and more recently, the Ontario Court of Appeal in Altiman, have reiterated that the principles of denunciation and deterrence require the imposition of significant penal sanctions in furtherance of the objective of denouncing and deterring those who would take lives and place the lives of others at risk by drinking and driving.

[123] I am not persuaded that the fact Mr. Davis-Locke slept for a period of time before deciding to drive from Toronto to Newmarket somehow acts to reduce the extent of his blameworthiness. He knew he had been drinking, he also knew he had enjoyed little sleep. While he may not have been aware of the rates of absorption and elimination of alcohol, he was at least reckless as to the risk his operation of a motor vehicle, after a night of drinking, represented.

[124] While there are no binding sentencing guidelines to prescribe a sentencing range to be employed in such circumstances, Ontario's highest court in Altiman, on review of a number of such cases, references the fact that most cases involving consideration of the offence in issue here result in the imposition of sentence ranging from four to six years in circumstances where the offender has no criminal record and no driving record.

[125] Where the offender has a criminal record or cognate driving record, the sentencing range is higher and sentences between seven to 12 years have been imposed.

[126] Lux Peyton Gomez will never realize her early childhood ambition to become a doctor and her family will never be the same as it once was.

[127] While the life-threatening injuries sustained by Mark Gomez and the serious bodily harm inflicted on Abigail Gomez will heal, the emotional toll from the loss of a child is enduring and not likely to dissipate by the simple passage of time.

[128] Beyond the Gomez family, the members of the community also have an interest in ensuring roadways are safe as they set out to enjoy brief respite from their daily endeavours.

[129] That sense of security is difficult to achieve and maintain if individuals continue to engage in risk-taking conduct involving alcohol in combination with the operation of a motor vehicle.

[130] Once the decision to drive was made, I conclude the events that subsequently unfolded were reasonably foreseeable and all too familiar – a blood-alcohol concentration in excess of the legal limit, of significant magnitude to impair the ability to drive, an excessive rate of speed (perhaps well in excess of the posted limit), fatigue, leading to a loss of control of the offender's motor vehicle, causing the vehicle to veer into oncoming traffic on a busy holiday weekend, placing the lives of many at risk, extensive property damage, and grievous life-threatening bodily injury culminating in the death of an innocent child.

Disposition

[131] Mr. Davis-Locke, if you would, please, stand:

1. In relation to the offence of impaired driving causing the death of Lux Peyton Gomez, count four on the Information, the sentence is six years in the penitentiary;

2. In relation to the offence of impaired driving causing bodily harm to Mark Gomez, count 5 on the Information, the sentence is four years concurrent;

3. A four-year concurrent disposition is also imposed in relation to the charge of impaired driving causing bodily harm to Abigail Gomez, count 6 on the Information;

4. On count 4, there will be an order prohibiting you from driving for 10 years in addition to the period of imprisonment. The driving prohibition in relation to counts 5 and 6 is six years. The driving prohibition orders are to run concurrently;

5. Mr. Davis-Locke shall provide a sample of his DNA in relation to all three counts. Impaired driving causing death and impaired driving causing bodily harm are secondary designated offences under s.487.04 of the Criminal Code.

Released: January 7, 2020

Signed: "Justice Peter D. Tetley"