Ontario Court of Justice

Date: 2023 10 16 Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JERZY BOGACZ

Before: Justice Newton-Smith

Heard on: May 15 and September 11, 2023 Reasons for Judgment released on: October 16, 2023

Counsel: R. Verboon, counsel for the Crown R. MacDonald, counsel for J. Bogacz

Reasons for Sentence

NEWTON-SMITH J.:

[1] Mr. Bogacz has plead guilty to one count of dangerous driving causing bodily harm.

The Facts

[2] At around 2 pm on a Sunday afternoon in January of 2022 Mr. Bogacz was driving his BMW at a high rate of speed on the Gardiner Expressway. He was making erratic lane changes and driving in such a dangerous manner that numerous calls were placed to 911 by concerned motorists. At 2:15 pm Mr. Bogacz made a sudden and dangerous lane change, passing a vehicle on the right before hitting a taxi cab. The driver of the taxi lost control and his cab hit the concrete guardrail before flipping in the air five times. The driver of the taxi was seriously injured, as was his passenger.

[3] The driver of the taxi suffered a hand injury which required immediate surgery as well as a head injury. To this day he has limited mobility in his left hand as a result of the injury. His taxi cab was totalled.

[4] The passenger suffered a laceration to her head that required a staple as well as shoulder and knee injuries. Several days later she woke up with a blind spot in her eye and eventually lost sight in that eye. She was diagnosed with severe optic neuritis. To date improvement in her vision in that eye has been minimal.

[5] Both the driver and the passenger were unable to work for extended periods of time and have suffered severe physical, financial and emotional consequences as a result of the accident.

[6] The accident was caught on the dashboard camera of another motorist. The video shows a busy highway full of cars taking people about their business on a bright and sunny Sunday afternoon. Watching the video Mr. Bogacz’s driving is so obviously dangerous that the accident appears to be inevitable. It is only a matter of luck that there were not more victims and that no one was killed.

The Position of the Parties

[7] It is the Crown’s position that an appropriate sentence for Mr. Bogacz is a 12 month custodial sentence followed by 18 months probation and a 5 year driving prohibition. The Crown also asks this Court to impose a restitution order on Mr. Bogacz.

[8] The defence submits that a 12 month conditional sentence order followed by 3 years probation is the appropriate sentence for Mr. Bogacz. The defence opposes the imposition of a driving prohibition and submits that a term of his conditional sentence order and probation preventing Mr. Bogacz from driving except for the purposes of work would satisfy the purposes and principles of sentencing. With respect to restitution, it is the position of the defence that this is a matter for the civil court to determine and impose.

Mr. Bogacz’s Circumstances

[9] Mr. Bogacz is 37 years old. He does not have a criminal record. He does, however, have a driving record which contains three convictions for speeding from 2006, 2018 and 2021.

[10] Since 2012 Mr. Bogacz has worked for Go Transit as a Track Utility Person. He has a CZ licence which allows him to operate heavy equipment and I am told that operating heavy equipment is one of his duties at Go Transit.

[11] Mr. Bogacz’s driver’s licence is currently suspended by the Ministry and he has not been able to drive since the accident. To date he has kept his job at Go Transit despite not having had a driver’s licence for the past 18 months. However, I am told that a driving prohibition will impact his employment and likely cause him to lose his job.

[12] Mr. Bogacz filed a brief letter with the court in which he stated that, “I accept responsibility for a foolish error I had made, and at the time did not factor in that the speed I was driving would constitute such a public hazard. I simply thought that I would be able to speed home to resolve an issue that was pressing.” He further states that he is not someone who, “purposefully goes out and tries to hurt others” and apologises for his actions.

[13] An even more brief letter from his mother was filed which stated that, “I can verify that Jerry was in a rush to get home because his brothers had been involved in a dispute. My oldest son at the time had a drinking problem and had become very aggressive. Jerry rushed home as he felt it was his responsibility to take care of his family. I understand that he had made a mistake, but he also helps me and my youngest son a lot.”

[14] There is also a letter from a registered psychotherapist, Noah Casey, with whom Mr. Bogacz completed 10 counselling sessions. Mr. Casey states that Mr. Bogacz reported being cognizant of the impact of his actions and of the need to slow his decision making, to not act impulsively and to proceed with caution on motorways.

[15] Mr. Bogacz has been a volunteer coach for youths at the Central Toronto Wrestling Club.

[16] Mr. Bogacz evidenced his intentions to plead guilty at an early opportunity and has done so without setting trial dates. I accept that he is remorseful for his actions.

Analysis

[17] As with offences involving impaired driving, dangerous driving, and particularly dangerous driving causing bodily harm, is an offence for which denunciation and deterrence are paramount sentencing factors. This message was clearly stated by the Justice Epstein speaking for the Ontario Court of Appeal in R. v. Rawn, 2012 ONCA 487 at para 41 and 45:

The offence of dangerous driving causing bodily has been described as among the more serious crimes. Dangerous driving puts the public at great risk of harm. The crime is all the more egregious when people, often innocent members of the public, are injured.

It is worth repeating – dangerous driving causing bodily harm is a serious offence. An appropriate sentence must give primacy to the objectives of general deterrence and denunciation. To meet the requirements of these principles, the sentence must clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable.

[18] Justice Epstein then affirmed a 2007 decision of the Court, R. v. Van Puyenbroek, 2007 ONCA 824, which identified the sentence range for dangerous driving causing bodily harm as being between a conditional sentence and two years less a day, with more substantial sentences being appropriate in some cases. She further affirmed the importance of a driving prohibition as part of a fit sentence for dangerous driving causing bodily harm, stating at para 48:

A fit sentence in this case must include an extended period of driving prohibition. I emphasize this aspect of the sentence as driving is at the core of the criminal conduct being addressed and at the core of the harm caused and potential harm created. A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives.

[19] The defence has referenced cases in which non-custodial dispositions were imposed in cases of dangerous driving causing bodily harm, and some even causing death. The facts in those cases are distinguishable and involved mitigating factors not present in this case.

[20] Section 320.22 of the Criminal Code states that it is a statutorily aggravating factor if more than one person suffers bodily harm. Here, while Mr. Bogacz has plead guilty to one count of dangerous driving, that serious bodily harm was caused to both the driver and passenger is an agreed fact that is before me and is aggravating.

[21] The accident here was not the result of one sudden reckless move, nor were there any extraneous factors that contributed to the accident. Mr. Bogacz drove extremely dangerously for an extended period of time such that numerous motorists called 911. He drove in this manner on a busy highway in downtown Toronto in the middle of a Sunday afternoon.

[22] I am told that he was rushing home to deal with a family crisis. If the situation in his home required urgent and immediate intervention, the appropriate response would be to call 911. I do not consider putting the lives of innocent people at risk for the sake of trying to get home quickly to be a mitigating factor.

[23] That being said here there is an absence of some of the aggravating factors often seen in this kind of driving such as impairment or street racing. Had those factors been present this is a case that would attract a sentence at the top of the range or higher.

[24] This is a case of egregiously dangerous driving on a busy highway which resulted in serious injury to two people.

[25] The mitigating factors here are Mr. Bogacz’s guilty plea and his remorse.

[26] In considering the facts of this case denunciation and deterrence call for a custodial sentence. Having considered Mr. Bogacz’s circumstances I do not find that the purposes and principles of sentencing can be adequately addressed in this case through the imposition of a conditional sentence.

[27] A fit sentence in this case is a sentence of 9 months incarceration and a 5 year driving prohibition.

[28] I do not consider a further term of probation to be necessary. Nor do I think that a restitution order is appropriate. This criminal court is not properly equipped to engage in a calculation of the financial damages incurred here. Additionally, any restitution order that I make is likely to be deducted from whatever civil obligations arise. This would leave the victims dependent on Mr. Bogacz’s ability and willingness to pay whereas payment from insurance companies is not subject to any such contingencies.

[29] Mr. Bogacz will be subject to the criminal court’s victim fine surcharge. The civil court is the more appropriate venue to deal with contentious financial damages arising from motor vehicle accidents.

Released: October 16, 2023 Signed: Justice Newton-Smith