Court File No.: 0611-998-20-1291 Date: January 11, 2023

Ontario Court of Justice

Central West Region

Between:

HIS MAJESTY THE KING

— and —

Herminta Skardiute

Heard Before: Mr. Justice Richard H.K. Schwarzl at Orangeville on November 14, 2022 Reasons Released: January 11, 2023

Ms. Liana Marcon, for the Crown Mr. Mark Hogan, for the Offender

SCHWARZL, J.:

Reasons for Sentencing

1.0: Introduction

[1] The offender, Herminta Skardiute, pled guilty to dangerous driving causing bodily harm, being count #2 on Information 20-1291. The prosecution seeks a sentence of 15 to 18 months and a 3 to 5 year driving prohibition. The defence asks for a conditional sentence order (CSO) of two years less a day, followed by probation for one year. They submit that a driving prohibition of 2 to 3 years would be appropriate.

[2] What follows are my reasons for sentence.

2.0: Circumstances of the Offence

[3] On July 1, 2020 the offender, then 25 years of age, went to Wasaga Beach with her husband, Donatas Baranouskas, and their two sons Martyn Martinkenas, then eight years of age, and Matthew Baranouskas, then two years of age. Mr. Baranouskas drank alcohol and when it was time to go home, he was too intoxicated to drive their Santa Fe SUV. The offender, who has never been licensed to drive in Ontario, decided to drive home.

[4] The offender drove south on Dufferin County Road 18, commonly known as Airport Road. This road is a gateway between the GTA and Wasaga Beach. As such, it is very busy in the summer, especially on weekends and holidays. It is well known in Dufferin County that Airport Road is the source of frequent collisions often involving bodily harm and/or death.

[5] Just south of Mansfield, which is about 45 km south of Wasaga Beach, the southbound offender collided with a car being operated by the victim, Adam Platt. The offender was driving nearly 140 km/hr whereas Mr. Platt was travelling in his Chevy Cruze at about 84 km/hr when the crash happened. The road was paved with asphalt; the north and south lanes were separated by double solid lines. The road was bare, in good condition, and dry, and the weather was clear. The speed limit was 80 km/h.

[6] The collision was caused when the offender passed a line of vehicles by moving into the northbound lane whilst approaching a blind hill at a very high rate of speed. Notwithstanding the road markings, which indicate that passing is not allowed, and her lack of a licence the offender decided to pass anyway. At the crest of the hill and while fully in the wrong lane, she struck Mr. Platt’s car. The force of the collision was so great that the engine of the Santa Fe was ejected out of the car frame. The front end of the offender’s car was completely crushed. Mr. Platt’s car was destroyed with the full front of his car being pushed into the space he occupied.

[7] Every occupant of each vehicle was injured. With respect to the occupants of the Santa Fe, the following injuries occurred. The offender suffered a broken right leg from which she has still not recovered. Her husband, who was unbelted at the time of the crash, was in critical condition with injuries to his face, hip, spine, and skull. He required surgery for a decompressive craniotomy and was put into a medically induced coma. Fortunately, he has made a full recovery. Eight-year-old Martyn suffered a broken hand. Two-year-old Matthew suffered only minor injuries. Mr. Platt, who was 22 at the time, suffered horrific life-threatening injuries. He has endured several surgeries to repair his broken body but has not recovered from his injuries.

3.0: Circumstances of the Offender

[8] The offender is a Lithuanian citizen. She is here on a visitor’s visa and has been in Canada since 2017. She married Mr. Baranouskas in 2018 with whom she lives in Mississauga together with her two children who are now 10 and 4. She is presently 27 years old.

[9] The offender always intended to plead guilty. In anticipation of the plea, she performed 82 hours of community service at a food bank in Mississauga. She also completed a series of psychotherapy sessions to address the depression, stress, and regret she has experienced due to this crime.

[10] The offender suffers chronic and severe pain in her right knee and ankle which has negatively affected her emotionally. The injury has impacted her ability of her leg to function normally. She had surgery but may require more. There is a fracture clinic appointment set for early 2023.

[11] The offender submitted a letter of apology. Although her English is poor, she clearly accepts responsibility for what she described as the “worst decision of my life.” She is deeply sorry for the harm she has caused and knows it was wrong to drive given her husband’s intoxication.

[12] The offender enjoys strong support from her family, including her husband and her mother-in-law. She has no criminal record. The offender appears to be a person of good character but for this offence. She has not been in trouble with the law either before or after this occurrence. Her prospects of rehabilitation are good.

[13] The offender is a homemaker who is the primary caregiver for her two sons, both of whom are now in school. Her husband supports the family financially by working full time as a carpenter.

4.0: Victim Impact

[14] Mr. Platt received injuries all over his body including a split lower jaw, brain bleeding, extensive facial damage, a broken right arm, a broken finger that was nearly amputated, multiple breaks in both of his legs, a very serious cut to his left arm, and punctured lungs. His injuries were so severe that doctors initially thought he might not survive.

[15] Although he went through extensive treatment and rehabilitation, his journey of recovery has been arduous and painful. Mr. Platt had to re-learn how to stand and then re-learn how to walk. He remains unable to walk normally. He lives in continual pain with parts of his body feeling constantly as if they are on fire.

[16] This offence has dramatically altered Mr. Platt’s life. Once an athletic individual, he can no longer engage in the sports he once enjoyed including running, soccer, basketball, boxing, and swimming. He has also lost much of his independence because the collision has forced him to live with family members who must help care for him. Mr. Platt is unable to pursue employment or education due to his injuries.

[17] In short, the impact on Mr. Platt has been devastating, profound, and permanent. He appears to have no foreseeable prospect of ever returning to a normal life.

5.0: Mitigating and Aggravating Factors

5.1: Mitigating Factors

[18] There are mitigating factors in this case which include the following:

a) Ms. Skardiute is a first-time offender; b) She is remorseful and understands that her actions were wrong; c) She has pled guilty and has preserved judicial resources in doing so; d) She performed 82 hours of community service at a food bank; e) She has undertaken rehabilitative therapy on her own; f) She suffered a significant long-term injury because of this offence; g) She is a person of otherwise good character; h) Her prospects of rehabilitation are good; i) She appears unlikely to reoffend; and j) She is the primary caregiver of two young children and is at risk of being separated from them.

5.2: Aggravating Factors

[19] There are also aggravating factors in the case including:

a) The offender was travelling at very high speeds (140km/h in an 80 zone); b) The offender was not licensed to drive a vehicle in Ontario: s. 320.22 (g) Criminal Code; c) The offender was responsible for the safety of three other people in the car she drove; d) Two of the passengers in her car were children under 16 years of age: s. 320.22 (c) Criminal Code; e) The commission of this offence resulted in bodily harm to three other people (her husband, her son Martyn, and Mr. Platt): s. 320.22 (a) Criminal Code; f) The degree of bodily harm was serious for Martyn and was life-threatening for both Mr. Baranouskas and Mr. Platt; g) The bodily harm to Mr. Platt is not only devastating, but likely permanent; h) This is not a case where the offender caused a collision due to a momentary lapse of judgement or a quick spell of inattention. She deliberately drove illegally from the moment she left Wasaga Beach; and i) Airport Road is notorious within Dufferin County for frequent collisions involving bodily harm and/or death.

6.0: Positions of the Parties

6.1: The Prosecution

[20] The Crown submits that incarceration of between 15 and 18 months and a driving prohibition of 3 to 5 years are just in this case. They submit that while a CSO is available, it should not be ordered in this case because such a disposition would (a) not adequately address denunciation and deterrence and (b) would be disproportionate to the gravity of this offence and the degree of the offender’s responsibility.

6.2: The Defence

[21] The defence submits that despite circumstances of the offence which point towards incarceration, the circumstances of the offender suggest that a just sentence can be achieved through a CSO. They submit that a lengthy and strict CSO enforced by electronic monitoring followed by probation is fit in this case. They say that the driving prohibition should be between 2 and 3 years.

7.0: Applicable Legal Principles

[22] Both parties agree that a significant sentence is necessary and appropriate in the circumstances of this offence and of this offender. Where they differ is on the nature of that sentence: the Crown submits immediate incarceration is warranted, whereas the defence submits that the sentence ought to be served in the community pursuant to section 742 of the Criminal Code.

[23] R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 is the leading case on conditional sentences and provides direction when balancing a conditional sentence with the principles and objectives of sentencing. One of the integral steps in this balancing is to consider which sentencing objectives figure most prominently in the factual circumstances of the case before me, such as deterrence and rehabilitation to name a few.

[24] In Proulx, the court stated at paragraph 127:

A conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

[25] On the other hand, however, the court also stated the following at paragraph 100:

Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction.

[26] A CSO is capable of achieving both punitive and restorative objectives. For example, sufficiently punitive conditions imposed by a conditional sentence order could provide significant deterrence: Proulx at pp. 107. In addition, detrimental effects of the circumstances of the case upon an offender can also achieve objectives of deterrence and denunciation: R. v. Bunn, 2000 SCC 9, [2000] 1 SCR 183; R. v. Bremner, 2000 BCCA 345, [2000] B.C.J. No. 1096 (C.A.). In such cases a CSO is a better sanction than incarceration: Proulx at para. 100. Where the offender’s risk of recidivism is low, consideration should be given to avoiding a sentence with immediate incarceration: R. v. Hargreaves at para. 36.

[27] Additionally, if a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration and restorative objectives cannot be readily satisfied, a conditional sentence is still preferable: Proulx at para. 100.

[28] The restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation: R. v. Batisse, 2009 ONCA 114, at paras. 32, 34; R. v. Disher, 2020 ONCA 609 at para 59; R. v. Ali, 2022 ONCA 736, [2022] O.J. No. 4754 (C.A.) at para. 40. The application of the restraint principle engages consideration of a CSO where it is legally available. In addition, collateral consequences such as separation of primary caregiver from her family can be a mitigating factor on sentence: R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34 at para. 47 to 49.

[29] The range of sentence for dangerous driving causing bodily harm is very broad, being anywhere from a CSO to two years less a day: R. v. Goudreault, [2004] O.J. No. 4307 (C.A.); R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689 (C.A.); R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 (C.A.). Whatever the range, courts have consistently held that the primary focus in such cases deterrence and denunciation: Proulx, at para. 129; R. v. Nusrat, 2009 ONCA 31; Rawn, at para 33; R. v. Singh, 2018 ONSC 4598 at paragraphs 22 to 25, affirmed 2019 ONCA 872.; R. v. Saunders, 2021 ONSC 6149 at para. 42; R. v. Balcha, [2003] O.J. No. 4721 (SCJ), aff’d , [2004] O.J. No. 1217 (C.A.); R. v. Currie, 2018 ONCA 218 at para. 15; R. v. Markos, 2019 ONCA 80 at para. 26; R. v. Berto, [2018] O.J. No. 5884 (SCJ); R. v. Panchal, [2019] O.J. No. 6878 (SCJ); R. v. Brighton, [2020] O.J. No. 4499 (OCJ); R. v. Yogeswaran, 2021 ONSC 5920.

[30] Most courts have ordinarily imposed custodial sentences for dangerous driving causing bodily harm. However, some courts have held that a CSO can achieve deterrence and denunciation in such cases: R. v. Vanleishout, 2008 ONCJ 320, [2008] O.J. No. 2828 (OCJ); R. v. Wright, [2020] O.J. No. 4865 (OCJ); R. v. Linton, 2022 ONCJ 197, [2022] O.J. No. 2013 (OCJ); R. v. He, [2022] O.J. No. 1809 (SCJ); R. v. Hutchinson, [2022] O.J. No. 2756 (OCJ); R. v. Creft, 2022 ONCJ 572, [2022] O.J. No. 5481 (OCJ).

[31] While prior good character and good prospects of rehabilitation are important, it is wrong to place too much emphasis on these when assessing the appropriate sentence in driving cases involving bodily harm or death. In Yogeswaran, the court observed at para. 67:

Unfortunately, it is often people of otherwise good character who inexplicably choose to drive recklessly on our roadways, behaving in an utterly selfish manner that is not in keeping with their behaviour in other facets of their lives. Accordingly, an offender's previous good character must be considered in context when sentencing for a driving-related offence: see R. v. Bigham (1982), 69 C.C.C. (2d) 221 (Ont. C.A.), at p. 223.

8.0: Principles Applied

[32] I agree with both parties that in this case, a sentence of less than two years is appropriate, thereby engaging the applicability of section 742 of the Criminal Code. In addition, I am satisfied that service of the sentence in the community would not endanger public safety. In this case, my focus is whether a CSO is consistent with the fundamental purpose and principles of sentencing.

[33] For reasons I will explain, I find that a conditional sentence order would be inconsistent with the principles and objectives of sentencing for the circumstances of this offender and of this offence. In other words, I find that a CSO in this case would not adequately denounce the offender’s unlawful conduct nor would it properly deter others in committing similar offences.

[34] Ms. Skardiute primarily supports her family as a homemaker. A conditional sentence order would simply put her back in the position where she traditionally spends most of her time, which is at home. Strict and onerous conditions on house arrest, even with limited exceptions, would not be sufficiently punitive. This would be inconsistent with the principle of deterrence and denunciation.

[35] Ms. Skardiute submitted that incarcerating her would deprive her children of their primary caregiver, thereby causing her to suffer disproportionate collateral consequences. While I am not unsympathetic, separation from her family speaks less to the propriety of a CSO and more to the appropriate length of incarceration. The collateral effect that the defence speaks of is not exclusive to Ms. Skardiute. The prospect of family disruption is true for all offenders with families, whether or not they are primary caregivers. In my view, as long as an offender has family that relies upon them in any way, family disruption is a foreseeable consequence of committing serious crimes. That said, the separation of an offender from her family is an appropriate consideration provided that the sentence imposed remains proportionate to the gravity of the offence and the responsibility of the offender: R. v. L.C., 2022 ONCA 863.

[36] Having taken into account the effects of familial separation, I am persuaded that the family disruption caused by Ms. Skardiute’s incarceration can be mitigated given the arrangements for childcare outlined by counsel in his submissions, including relatives and friends pitching in to look after the children.

[37] In R. v. Lacasse, 2015 SCC 64 at para. 64, the Supreme Court of Canada stated that the severity of sentence depends not only on the seriousness of the offence, but also on the moral blameworthiness of the person who committed it. In this case, the offence was serious. The offender’s moral blameworthiness is very high. She drove, without a licence, for many kilometres while entrusted with the care of two children in the car and then went at nearly twice the speed limit passing a line of cars up a blind hill. There was no need for her to be passing anybody. Given her unlicensed status, the offender had every reason to drive with scrupulous care and caution. She engaged in prolonged and reckless disregard for public safety culminating in a collision that nearly killed at least two people.

[38] The cumulative effect of the aggravating factors in this case outweighs the many mitigating factors such that general deterrence and denunciation are best met by actual incarceration. Of particular concern is the place where she committed this offence. Airport Road in Dufferin County is an undulating, winding road. It is a tricky roadway that requires skill and caution at the best of times and, over the years, is known as the scene of frequent collisions involving bodily harm and death. On any given day, motorists may observe crosses and flowers that pepper the roadside in both directions along Airport Road in Dufferin County. Too often, innocent people travelling to and from the Wasaga Beach area have suffered the misfortune of being involved in a head-on collision due to a dangerous or drunk driver, often resulting in serious injuries or worse. Ms. Skardiute’s crime on the date of this offence is another example of these avoidable collisions.

[39] There is a reason why driving is regulated by strict and onerous licensing requirements. Driving is inherently risky and is an activity for which there is a very heavy obligation on all drivers to be responsible to ensure the safety of others. Individuals like Mr. Platt deserve to be confident that when driving on the road, their lives will not be at stake, especially by those who are not trained in the rules of the road. Moreover, drivers deserve to expect that on this particular road, they will arrive at their respective destinations alive and unharmed.

[40] This case and this offender require me to send a clear message to all citizens that the conduct that Ms. Skardiute engaged in is not only very serious, but completely unacceptable. This message can only meaningfully be achieved by means of actual incarceration.

9.0: The Sentence

[41] Having determined that a CSO is not a fit sentence in this case, I turn to the question of the appropriate jail sentence. Upon applying judicial restraint and after considering the aggravating and mitigating factors, the collateral consequences of imprisonment, as well as the impact on the victim, I find that the fit sentence in this case is 15 months imprisonment.

[42] There will be a driving prohibition of 3 years, which is the maximum pursuant to section 320.24(5)(c) of the Criminal Code.

[43] I may be spoken to by counsel regarding any other ancillary orders which might be made.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice