Court File and Parties
COURT FILE NO.: 316/17 DATE: 20181019 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – FURQAN AKHTAR SAIFULLAH DERO
Counsel: Kosta Stratos, for the Crown Ian Collins, for the Accused, Furqan Akhtar
HEARD: August 31, 2018
Reasons for Sentence
GARTON J.
1Furqan Akhtar, age 23, and Saifullah Dero, age 22, were found guilty by a jury of one count of criminal negligence causing death while street racing, pursuant to s. 249.2 of the Criminal Code (Count 10 in the indictment), and two counts of criminal negligence causing bodily harm while street racing, pursuant to s. 249.3 of the Code (Counts 11 and 12).
2Mr. Dero failed to appear in court on July 3, 2018, which was the day that I charged the jury. The trial continued in his absence after it was established that Mr. Dero had absconded and left the country. After the jury delivered its verdicts, Mr. Dero’s lawyer brought an application to be removed as counsel of record, which I allowed. Thus, these sentencing proceedings were held in Mr. Dero’s absence, and without any submissions being made on his behalf. I note, however, that Mr. Dero testified at his trial and provided fairly extensive evidence as to his background. Crown counsel takes the position that the same sentence should be imposed on both accused.
Circumstances of the Offences
3On September 20, 2015, shortly before 8:00 p.m., Christopher Ho, age 65, his wife Susanna Ho, age 60, and Ms. Ho’s mother, Uen-Pang Chan, age 80, left the nursing home where Ms. Chan’s husband (Ms. Ho’s father) was a resident. They got into their Honda Accord and headed home. Mr. Ho was driving. Ms. Ho was in the front passenger seat, and Ms. Chan was seated behind her in the rear passenger seat. Everyone was wearing their seatbelts.
4The nursing home was just west of the intersection at Ellesmere Road and Midland Avenue. Mr. Ho drove east on Ellesmere. As he approached the intersection, he moved into the left turn lane with the intention of turning left or north onto Midland. He had executed the same left turn at this intersection hundreds of times. There were several vehicles behind him in the left turn lane.
5When the road was clear, Mr. Ho entered the intersection to prepare to make the turn. With no oncoming traffic in sight, he began to execute the turn. As he did so, he suddenly saw several lights coming toward him at a very high speed. They were coming so fast that Mr. Ho had no time to react before two vehicles westbound on Ellesmere crashed into his car at virtually the same time. Those vehicles were driven by Mr. Akhtar and Mr. Dero. Mr. Akhtar was driving a 2010 Lincoln MKT SUV and was in the westbound passing lane. Mr. Dero was driving a 2009 Mercedes C300 and was in the westbound centre lane.
6The evidence indicates that Mr. Akhtar and Mr. Dero had begun street racing with each other at some point after the intersection at Ellesmere and Brimley Road, which is about 900 metres east of the intersection of Ellesmere and Midland. During the race along Ellesmere, they reached speeds of up to 144 km/h. The speed limit on Ellesmere is 60 km/h.
7By way of background, earlier that day, Mr. Dero had driven the Mercedes to Mr. Akhtar’s residence in the area of Birchmount Road and St. Clair Avenue. Mr. Akhtar then drove him and Mr. Akhtar’s family members – his mother and three brothers – in the Lincoln to a farm outside of Toronto, where they spent the better part of the day. They returned to the Akhtar residence around sunset. Mr. Dero, Mr. Akhtar, and Mr. Akhtar’s younger brother, Adnan, later decided to go get dinner at a restaurant near Warden Avenue and Lawrence Avenue East. Mr. Dero took his own car because he planned to drive directly home from the restaurant. Mr. Akhtar drove the Lincoln. The vehicles made a brief stop at a plaza at Markham Road and Ellesmere, and then continued west on Ellesmere, past Brimley, and heading toward the intersection at Midland. Somewhere between Brimley and Midland, Mr. Akhtar and Mr. Dero began to street race.
8Mr. Akhtar’s and Mr. Dero’s vehicles were not visible to Mr. Ho when he started to turn left because they were on the other side of an incline or hill in the road. When they crested the hill, they were about 150 metres from Mr. Ho’s vehicle. As a result of the excessive speed that they were travelling, Mr. Ho had no time to react once Mr. Akhtar’s and Mr. Dero’s vehicles became visible.
9Mr. Akhtar and Mr. Dero continued to race with each other after cresting the hill and after Mr. Ho’s vehicle came into their view. Mr. Dero acknowledged that he sped up as he went up the incline. Video surveillance shows that just after cresting the hill, the Lincoln and Mercedes passed a white vehicle that was in the centre lane. Mr. Akhtar passed it on the left, while driving in the passing lane; Mr. Dero passed it on the right, while driving in the curb lane. The Lincoln and Mercedes, which appear to be travelling at the same speed or “side by side,” were going so fast that they left the white vehicle “in the dust” so to speak. Mr. Dero acknowledged in his testimony that this was a “dangerous pass.”
10The Lincoln’s Event Data Recorder documented the Lincoln’s speeds during the five seconds prior to impact. At the 5-second mark, the Lincoln was travelling at 139 km/h. It continued to gain speed, reaching 144 km/h at the 3-second and 2.5-second mark before impact. Mr. Akhtar did not apply the brakes until 1.5 seconds before impact. At one second before impact, the Lincoln was travelling at 129 km/h. When it hit Mr. Ho’s vehicle, it was going 112 km/h.
11Mr. Ho recalled that the front part of his car was struck, and that it then “sort of swirled around,” at which point he passed out. It was only when he regained consciousness, which was about five or ten seconds later, that he realized that he had been hit by two vehicles.
12Ms. Ho’s evidence was similar to that of her husband. She testified that all of a sudden and out of nowhere, as Mr. Ho started to turn left and was moving north, she saw two bright lights approaching their car, and then they were hit. According to Ms. Ho, everything happened really fast – so fast that there was no time to think. It was like a bullet or freight train heading toward them. She thought that their car was hit on her side of the vehicle. She then lost consciousness. The next thing that she remembered was people carrying her out of the car and putting her on the sidewalk. Both she and Mr. Ho suffered serious bodily harm as a result of the collision.
13Ms. Chan, who was in the back seat, suffered a torn aorta, which was a fatal injury. She also suffered several fractures to her torso, a broken clavicle, and a fracture to her left ankle. Ms. Chan’s vital signs were absent when paramedics removed her from the vehicle, and she was pronounced dead at the scene shortly thereafter.
14Detective Constable Spencer, who was the Collision Reconstructionist, described the collision as a “highway speed” crash, as opposed to a street-speed collision, given the catastrophic damage to the vehicles involved, the distance between them when they came to rest, and the fact that a belted occupant in the Accord was killed when the interior cabin was relatively undamaged.
15Five vehicles were involved. The first impact occurred when Mr. Akhtar’s Lincoln entered the intersection west-bound in the left passing lane and struck the rear passenger corner of Mr. Ho’s Accord with its right front passenger corner. The impact crushed the Accord’s trunk area into the body of the vehicle, and ripped off the Accord’s metal bumper with such force that the bumper was driven through the front radiator of the Lincoln’s engine block, and ripped a hole out of its hood.
16According to Officer Spencer, Mr. Akhtar’s Lincoln did not lose a significant amount of speed after this impact. It continued in a southwest direction, sideswiped the rear portion of a black Honda that was in the intersection, and then hit the median curb. At that point, the Lincoln’s front end went airborne and struck the front end of a 2015 Honda Civic, which was stopped and waiting to turn left or northbound onto Midland. The Lincoln continued going southwest, mounted the south curb of Ellesmere, and came to rest near a bus shelter. Mr. Akhtar did not sustain any injuries as a result of these collisions.
17The Mercedes had entered the intersection westbound in the centre lane. Mr. Ho’s Accord had been spun clockwise after being hit by the Lincoln but, a split second later, was spun counterclockwise when it was struck by the driver’s side front corner of the Mercedes.
18After striking Mr. Ho’s Accord, the Mercedes rotated clockwise and came to a stop in the northwest quadrant of the intersection. The Mercedes sustained significant damage from the impact. The hood, which had buckled, was forced back toward the cab, and the radiator and engine components were crushed back toward its occupants – that is, the driver, Mr. Dero, and Mr. Akhtar’s brother, Adnan, who was in the front passenger seat.
19The Ho’s Accord sustained significant damage to the front passenger side corner after its impact with the Mercedes. After impact, it came down on the centre median and hit a traffic signal pole on its rear passenger side. This prevented it from crossing the median into the south lanes of the roadway. As explained below, the Accord was about to sustain a third impact, this time from the Honda Civic, which had been struck head-on by Mr. Akhtar’s Lincoln.
20The impact from the Lincoln striking the 2015 Honda Civic caused the Civic to rotate clockwise and continue backward. The Lincoln struck the Civic with such force that even though the vehicle had been stopped at the intersection, and the driver, Mary Raganas, kept her foot on the brake, it was propelled backward at a speed of 32 km/h. The Civic’s rear tires mounted the centre curb median. It then struck Mr. Ho’s Accord, which had hit the pole and had continued along the median. The Civic’s rear corner on the driver’s side collided with the rear corner of the Accord on the driver’s side. The Civic continued to rotate clockwise, and ultimately came to a stop on the median. Ms. Raganas sustained an injury to her lip and a burn to her hand when the airbag deployed.
21Mr. Akhtar remained at the scene, as did Mr. Dero. Mr. Dero and Adnan were later taken to Scarborough Centenary Hospital, but neither sustained any serious injury. Adnan had a bruise on his knee.
22The damage to the Lincoln, the Mercedes, the Ho’s Honda Accord, and Ms. Raganas’ Honda Civic was such that all four vehicles were considered to be “write-offs.”
23As a result of these collisions and the ensuing investigation, the intersection of Ellesmere and Midland was closed from 8:00 p.m. until after 4:00 a.m. the following morning.
Impact of the Offences on Christopher Ho, Susanna Ho, and Uen-Pang Chan’s Family
Christopher Ho
24The physical injuries sustained by Christopher Ho included a blood clot in his brain, a blood clot under the skin of his ankle, a fractured knee, and a fractured ankle. He had pain in his chest, shoulder and lower back. Over a period of about one year, the pain gradually subsided, but not completely. Mr. Ho is now very nervous when he drives. He tries, however, to control that feeling because his entire family relies on him to do the driving.
25Prior to the accident, Mr. Ho intended to work until age 69. However, he has had to retire early in order to take care of his wife, Susanna, as well as his father-in-law, who is in a nursing home. Mr. Ho describes his wife as devastated by the death of her mother. She is very nervous when sitting beside him in the car, particularly when he is making left turns on busy streets. She continues to try to avoid driving. She also continues to suffer physical pain as a result of her injuries.
26Mr. Ho described September 20, 2015 as starting out as a wonderful day. They had picked up his father-in-law at the nursing home and brought him home, where the family spent the day together. Ms. Chan, whom he described as wise, happy and full of love, cooked their favourite dishes. They later returned to the nursing home, where Ms. Chan helped her husband get settled before they left to return home. Ms. Chan attended daily at the nursing home to take care of her husband. Everyone there liked her.
27Mr. Ho observed that as a result of two young men thinking that it would be fun to race their cars on a busy street, Ms. Chan is now dead. In his Victim Impact Statement, Mr. Ho states:
The car accident has ruined our lives. No one can replace my mother-in-law, who always put the family first. No words can express my sorrow for the loss of her and my gratitude to her for loving and taking good care of us throughout her lifetime. She is deeply missed and loved.
Susanna Ho
28The physical injuries sustained by Susanna Ho included a blood clot in her brain, fractured ribs, a dislocated knee cap, bruising on the right side of her waist, and lower back pain. After completing three phases of physiotherapy over a six-month period, the pain has gradually subsided. However, Ms. Ho still experiences pain in certain weather. She was off work for three months after the accident. When she returned to work, she worked modified hours.
29In her Victim Impact Statement, Ms. Ho describes how her mother, Ms. Chan, suffered a good deal of hardship in her youth, having lived through the Cultural Revolution in China. Ms. Chan never had an opportunity to receive a proper education. But she never gave up hope, and worked hard to change the course of her life. She worked in factories for a minimum wage in order to feed her family. She was a good worker, a good mother, and a good wife. Her unselfishness meant that Ms. Ho, her husband, Christopher, and their son, Duncan, could concentrate on their work without worries. Ms. Chan’s husband, who suffers from Parkinson’s disease, depended on her care on a daily basis. Since her death, the responsibility of visiting and attending to him in the nursing home has fallen to Ms. Ho and her husband. Ms. Ho avoids talking about her mother with her father because he gets upset, which worsens his medical condition.
30Ms. Ho described her mother as positive, funny, versatile, easy-going, clever and kind. Ms. Ho misses her intensely. She misses going to the gym with her three times a week, eating dim sum with her on weekends, grocery shopping together, and celebrating family birthdays and holidays. One of Ms. Ho’s deepest regrets is that she did not have an opportunity to say goodbye to her mother, and to tell her how much she loved her. Ms. Chan’s life was cut short so unexpectedly and unnecessarily.
31The car accident has cast such a dark cloud over Ms. Ho psychologically that she found it painful to have to return to the scene whenever she visited her father in the nursing home. As a result, she moved her father to another long-term care facility, and she and her husband also moved. They now live closer to his residence, thereby obviating the need to drive a long distance. Part of Ms. Ho’s motivation in selling their former home was the fact that it was full of her mother’s “footprints and memories,” which were constant reminders that her mother was gone forever, and which filled her with pain and sorrow.
Mary Gilby, Howard Gilby, Debi Gilby, and Lisa Gilby
32Victim Impact Statements were also prepared by Ms. Chan’s other daughter, Mary Gilby, her husband Howard Gilby, and their two daughters, Debi and Lisa. The Gilby family lives in the United Kingdom.
33Mary Gilby describes the shock at learning that her mother had been killed in a car accident, and how losing her has devastated their family and put it into turmoil. She described Ms. Chan as fit, healthy, funny, inspiring, and “not ready to go.” Ms. Chan spoke to the family for hours each week on Skype and FaceTime, and supported all the members of the family in their various endeavours. She was always “the strong, wise voice who would help us all deal with life.”
34Ms. Gilby continues to suffer emotionally from the untimely loss of her mother: “I still get upset when I think of how cruel her final moments were and especially when I think I didn’t even say my last goodbye!”
35Howard Gilby states that Ms. Chan was always an important and positive presence in their lives. He recalled that Ms. Chan used to fly to England quite frequently to care for their children when they were younger, thus enabling him and his wife to keep working. Both his wife and his sister-in-law have taken the loss of their mother very badly, and the hurt that they are experiencing has affected the entire family.
36Debi Gilby recalls Ms. Chan as a sweet, kind, and caring grandmother who knew how to make her laugh, and taught her to always have respect for others. Ms. Chan taught Tai Chi to Debi and her sister, which assisted them in their careers as performers. She also talked to them about the family’s history, and how Ms. Chan’s parents lost everything in the Cultural Revolution. Debi is particularly saddened that her own two children will never meet their great-grandmother.
37Lisa Gilby described Ms. Chan as an important and constant presence in her life. Ms. Chan was present at her birth, and has been there for her through all the important moments in her life. She was funny, inspiring, and always supportive and encouraging. Lisa states: “I love and miss her so much and her sudden cruel passing has been really hard to accept. Words cannot express how much I miss her.”
Circumstances of the Offenders
Furqan Akhtar
38Mr. Akhtar, now age 23, was 20 years old at the time that he committed these offences. He was born in Pakistan, and immigrated to Canada with his family in 2002, when he was six years old. He is now a Canadian citizen. He has no prior criminal record.
39At the time of these offences, Mr. Akhtar had his G2 driver’s licence. On July 8, 2014, he was convicted of going 72 km/h in a 50 km/h zone. He was fined and received three demerit points. He was also convicted on the same date of failing to produce his insurance card.
40Mr. Akhtar is the third youngest of four brothers. His parents separated when he was quite young. Following the separation, his father had minimal contact with the family. According to the Pre-Sentence Report (“PSR”), his father did not attempt to resume regular contact with his children until Mr. Akhtar was in grade 11. Mr. Akhtar currently has monthly telephone conversations with his father. He has not, however, told him about the present offences as he fears being ridiculed by him.
41Mr. Akhtar’s mother and brothers are very supportive of him, and attended in court on a regular basis during the trial. Mr. Akhtar is described as very close to his mother, and is acutely aware of the difficulties that she has faced in raising four boys on her own. Mr. Akhtar does what he can to make her life easier, including helping out with various household chores, such as mowing the lawn, and dealing with tradespeople when work is required around the house.
42Mr. Akhtar comes from a very religious family, and regularly attends mosque. He has never consumed alcohol or illicit drugs.
43Mr. Akhtar attended a private Islamic school from grades four to twelve. He was always involved with the student council, and was Student Council President in his final year of high school. The Vice-Principal, Nazneen Wajid, who attended in court during these sentencing proceedings, advised the author of the PSR that Mr. Akhtar not only participated in student council activities but also encouraged other students to get involved as well. Ms. Wajid described Mr. Akhtar as hardworking. He sometimes struggled with his grades, but made every effort during and after school to do better, as his studies were very important to him. Ms. Wajid also described Mr. Akhtar as gentle in demeanour, and a respectful student.
44Mr. Akhtar is currently enrolled at Ryerson University in the Bachelor of Civil Engineering program. He has two more years of study before obtaining his degree. He was in his second year of university when he was charged with these offences. He subsequently took two semesters off – the equivalent of one full school year – as a result of the emotional trauma he was experiencing. He returned to school the following year, beginning with a partial course load, but is now carrying a full course load.
45Mr. Akhtar’s “Engineering Mentor” at Ryerson, Mohammed Sahban Ali, described Mr. Akhtar as actively involved in both the academic life and extracurricular activities within the university. Mr. Ali intends to continue mentoring Mr. Akhtar.
46Mr. Akhtar has held a number of part-time jobs while attending university. He worked at a telephone call centre for one year, and at an auto body shop for another year. During the year that he was not attending school, he worked for a security firm. Over the past year, he has been employed at Pixel Networking, where he does technology-related work. His employer describes him as a good worker and reliable employee. Mr. Akhtar uses some of the money he earns to provide financial support to his mother, paying for household expenses such as the water and electricity bills.
47Mr. Akhtar’s mother described him as depressed after the accident. Mr. Akhtar told the author of the PSR that he could not sleep for three or four months, and lost most of his friends as he isolated himself from them. He has not sought professional help. He has, however, received ongoing support from members of his family, as well as from his best friend, Arneer Humdan. He stated that he contemplated suicide after the guilty verdicts were rendered, and at one point attempted suicide by walking into oncoming traffic. His older brother intervened. There have been no further attempts to take his own life.
48During the trial, Mr. Akhtar took no responsibility for the collision. He blamed Mr. Ho for causing the accident, blamed the police and the Crown for “putting him through torture,” and asserted that the video surveillance footage had been “doctored.” However, Mr. Akhtar advised the author of the PSR that he now takes full responsibility for the offences and that he is “really sorry for what happened.” He also expressed a willingness to complete community service hours, indicating that he would like to spread awareness regarding road safety to young people in the hope that it would reduce the incidence of accidents such as this one. He stated that he himself never wants to drive again.
49In his statement to the court, Mr. Akhtar re-iterated that he now takes responsibility for causing the collision, and apologized to the Ho family. He stated that he did not intend to hurt anyone, that he was willing to do community service, and that he was very scared of going to jail.
50Mr. Akhtar was arrested on these charges on January 5, 2016, and was released on bail five hours later. The terms of his bail were not onerous. Although he was subject to a curfew between 9:00 p.m. and 6:00 a.m., he was permitted to be outside his residence during those hours if he was in the presence of his mother or older brother. There was no reporting condition.
Saifullah Dero
51Mr. Dero, now age 22, was 19 years old at the time that he committed these offences. He was born in Pakistan and first came to Canada with his family in 2008, when he was 12 years old. The family returned to Pakistan at some point for what was described as financial and family reasons, but came back to Canada in 2012, when Mr. Dero was seventeen. The family has resided in Canada since that time. Mr. Dero has no prior criminal record.
52As stated earlier, during the weekend before my charge to the jury, Mr. Dero absconded and returned to Pakistan. He is not a Canadian citizen.
53Mr. Dero’s family lives in Toronto, where they own a house. Mr. Dero has a younger brother, age 21, who is studying engineering at Ryerson University, and a sister, age 19, who attends the University of Toronto. He also has twin sisters, age 14, one of whom has a major learning disability and who attends a special school. Prior to absconding, Mr. Dero spent an hour each day working with her to supplement her speech therapy classes. His mother could not assist in this regard because of her limited ability to speak English.
54Mr. Dero’s father is a mechanical engineer, who was previously employed in that field in Pakistan. After coming to Canada, Mr. Dero Sr. obtained a Master’s degree in Engineering, but has not as yet obtained his licence to practice as an engineer in Ontario. In the meantime, he has been working as a security guard and an Uber driver.
55Mr. Dero’s mother has a part-time job in a factory.
56At the time that he was charged with these offences, Mr. Dero was enrolled at the University of Ontario Institute of Technology in the Bachelor of Engineering program, and was studying to be an electrical engineer. At the time of the trial, he had completed his third year of the program.
57While attending university, Mr Dero worked part-time at a retail store. He used his earnings to cover the cost of getting to and from school, and used the balance to help support his family.
58Following the events on September 20, 2015, Mr. Dero reduced his course load. Although he was not physically injured as a result of the collision, he has suffered emotionally, having experienced depression and disturbed sleep patterns. He also engaged in self-harm, striking himself in the face hard enough that he sustained bumps and bruises. In 2017, he was diagnosed with post-traumatic stress disorder. However, he was unable to obtain treatment for this condition, as the government-financed facilities were not taking any new patients, and Mr. Dero’s family could not afford to pay for a private treatment program.
59Mr. Dero obtained his G2 licence in 2014, and his full G-licence just a few weeks prior to committing these offences. He testified that he usually drove the family’s Dodge Caravan. When he drove the Mercedes, his father usually accompanied him. He had only driven the Mercedes a few times without his father being present. The family acquired the Mercedes in the spring or summer of 2015, or just a few months prior to these offences.
60During his testimony, Mr. Dero described the events on September 20, 2015 as very tragic, and stated that he was “very sorry for what happened.”
Positions of the Parties
Position of the Crown
61Mr. Stratos, on behalf of the Crown, seeks a penitentiary sentence in the range of three to four years for both Mr. Akhtar and Mr. Dero.
62Mr. Stratos referred in his submission to the decisions in R. v. Nusrat, 2009 ONCA 31, 239 C.C.C. (3d) 309; R. v. Multani, 2010 ONCA 305, 261 O.A.C. 107; and R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129.
63In Nusrat, at para. 69, the Court of Appeal analogized the conduct of a street racer to that of a drunk driver. Both kinds of drivers are at least potential, if not actual killers. The Court explicitly stated that the paramount sentencing principles in a case of street racing are denunciation and general deterrence.
64Nusrat, Multani, and Badhwar were street racing with each other for a distance of 44 kilometres as they drove north on a heavily travelled portion of Highway 400. They were weaving in and out of heavy traffic, forcing drivers to brake quickly and/or take evasive measures to avoid being struck. At one point, Nusrat cut off and struck a tractor-trailer driven by the victim. The collision caused the truck to strike another car before spinning off the highway and rolling into a ditch. The truck driver was killed instantly.
65Mr. Nusrat, who was 19 years old and had no prior criminal record, entered an early guilty plea in the Ontario Court of Justice to criminal negligence causing death while street racing. The sentencing judge imposed a conditional sentence of two years less a day, plus probation for two years. The Court of Appeal, in allowing the Crown’s appeal and imposing a sentence of 30 months, observed that Nusrat had entered into an agreement with other thrill seekers to race along a busy highway – taking the life of one and risking the lives of many (para. 68). This conduct evidenced a deliberate endangerment of other users of the road and carried with it a high level of moral blameworthiness. The Court found that intentional risk taking of this nature and duration, with horrific consequences, called for a penitentiary range sentence.
66Mr. Multani, who was 19 years old and had no prior criminal record, entered a guilty plea to the same offence at a later date in the Superior Court of Justice. Defence counsel took the position that Mr. Multani should receive a shorter sentence than Mr. Nusrat since Mr. Multani was not the one who actually caused the collision that resulted in the victim’s death. The sentencing judge rejected this argument, holding that they were equally culpable. The street racing was a joint venture in which each driver encouraged the other to drive in a manner that put other users of the road at risk and ultimately resulted in the loss of the victim’s life. Mr. Multani, unlike Mr. Nusrat, was not a committed member of a “street racing subculture.” This was an aggravating factor in Mr. Nusrat’s case. However, Mr. Multani entered his guilty plea months after Mr. Nusrat’s guilty plea. Balancing these factors, the sentencing judge imposed a sentence of 30 months, which was upheld on appeal.
67Mr. Badhwar, who was in his early twenties, was found guilty by a jury of criminal negligence causing death while street racing. In dismissing his appeal from the 30-month penitentiary sentence imposed by the trial judge, the Court held, at para. 46, that the sentence was not unfit and, if anything, could be considered as lenient.
68In the present case, Mr. Stratos, for the Crown, submits that Mr. Nusrat’s early guilty plea had the effect of “setting the ceiling” at a 30-month sentence for Multani and Badhwar. Mr. Stratos argues that given the Court’s comment in Badhwar that 30 months was a lenient sentence for Mr. Badhwar, who was found guilty following a jury trial, a lengthier sentence is called for in the present case. Mr. Akhtar and Mr. Dero have expressed remorse, but only at a very late stage in the proceedings. In these circumstances, their remorse, although mitigating, is entitled to less weight than it would have been accorded had they entered early guilty pleas.
69Mr. Stratos also submits that the fact that Mr. Akhtar and Mr. Dero were racing on a city street, as opposed to a highway, is an aggravating factor. Unlike a highway, there were no barriers on Ellesmere blocking oncoming traffic, which increased the likelihood of a head-on collision after the first collision. Mr. Stratos submits that given the speed at which the accused were racing – they were going 84 km/h over the 60km/h speed limit – and the vehicular and pedestrian traffic in the area, it was almost inevitable that someone would be killed as a result of their risk-taking behaviour. He noted that there were stores in the area, bus stops, bus shelters, and gas stations, where cars could be expected to be entering and exiting.
70In support of his position that a sentence in the range of three to four years is appropriate, Mr. Stratos also referred to the decision in R. v. Tang, 2001 BCPC 62, where the accused, age 25, entered an early guilty plea to criminal negligence causing death and failing to remain at the scene of an accident. During a street race at 1:37 a.m., Mr. Tang struck and killed a pedestrian, who was crossing an intersection. The race, which involved two other vehicles, had begun five minutes earlier. Tang fled the scene, but surrendered to police the next day, co-operated with the investigation, and expressed remorse. He received a sentence of four years on the charge of criminal negligence causing death, and six months concurrent for failing to stop.
71Tang was single, lived with his parents, and “did not quite graduate high school.” He had a criminal record for possession of counterfeit money, and a “serious” driving record, including five speeding convictions, two moving infractions, and nine infractions for driving without a driver’s licence and insurance. He was driving without a licence when he committed these offences. He had not paid any money toward the $12,000 fine imposed for the counterfeit money offence, and had only completed five of the 50 hours of community service that had been ordered.
72The fact that three street-racing vehicles were involved was an aggravating factor in Tang. The vehicles were travelling in a “V” formation at speeds approaching 200 km/h, and entered the intersection as a phalanx in the three lanes. Tang went through a red light, and was weaving in and out of traffic during the race in order to advance his position with respect to the other two vehicles. The sentencing judge noted that Tang had the opportunity during the five-minutes of racing to assess the risk and abandon the enterprise. However, the race became even more dangerous as it progressed, with excessive speeds maintained and other risks taken, such as going through yellow lights.
73In imposing the four-year penitentiary term, the sentencing judge in Tang also observed that there had been an increase over the last few years in street racing on city streets. The increased incidence of this criminal conduct, plus the fact that Tang had entered into a tacit agreement with other thrill seekers to race through the streets, thereby multiplying the risk to other members of society, called for a special emphasis on general deterrence. Mr. Stratos submits that these same factors are applicable in the present case.
74Mr. Stratos also seeks a driving prohibition order for 10 years; a weapons prohibition order under s. 109 of the Code for 10 years; a DNA order; and an order of forfeiture with respect to the property seized, including the Lincoln and Mercedes.
Position of the defence
75Mr. Collins, on behalf of Mr. Akhtar, submits that a reformatory term, plus a period of probation, would adequately address the need for general deterrence and denunciation. He submits that a lengthy probationary term and a driving prohibition in excess of 10 years would “stiffen” the custodial portion of the sentence, thereby satisfying the sentencing objectives of general and specific deterrence without being a crushing sentence.
76Mr. Collins argued that the 30-month sentence imposed in Nusrat, Multani, and Badhwar represents the upper range of sentences for street-racing offences, and sought to distinguish those cases from the present case on the basis that Nusrat, Multani and Badhwar were racing with each other over a distance of 44 kilometres. Mr. Akhtar’s and Mr. Dero’s street race was of a much shorter duration – perhaps two minutes at most.
77Mr. Collins also noted that Mr. Nusrat was a member of a street-racing subculture, having referred to himself as a “Cut King,” or someone who cuts off other vehicles while racing. There is no evidence in the present case that Mr. Akhtar or Mr. Dero were part of that subculture. However, as Mr. Stratos observed, all three accused received the same 30-month sentence, even though Multani and Badhwar were not members of the street-racing subculture. In upholding the 30-month sentence imposed on Multani, the Court of Appeal agreed with the trial judge that Multani and Nusrat were engaged in a common venture, and that any differences in their backgrounds were not sufficient to call for a lesser sentence for Multani.
78Mr. Collins referred to R. v. Fretz, 2008 ONCA 507, 63 M.V.R. (5th) 1, as an example of a reformatory term being imposed where the accused’s driving resulted in the death of two people. The appellant in that case was convicted of two counts of criminal negligence causing death. After consuming alcohol, he had driven on the Queen Elizabeth Highway in an erratic, “out of control” fashion, at speeds in excess of 140 km/h. His vehicle crossed three lanes of traffic and struck a car that was parked on the shoulder of the highway. The two people in the parked car were killed instantly.
79The trial judge imposed a sentence of two years less a day, plus three years’ probation and a ten-year driving prohibition. On appeal, the appellant argued that the trial judge erred in failing to impose a conditional sentence, and by placing undue weight on the principles of general deterrence and denunciation. In upholding the jail portion of the sentence, the Court observed that the trial judge was fully aware of the appellant’s youthfulness, and other mitigating factors, including his lack of prior driving offences, the fact that he was a gifted athlete, had excellent family and community support, and had suffered tremendously from guilt and remorse. Nonetheless, the objectives of denunciation and general deterrence had to take precedence, given the appellant’s reckless conduct and consumption of alcohol. The Court, however, reduced the driving prohibition to five years, as a longer period would have unreasonably hampered the appellant’s future employment prospects.
80A significant distinguishing feature between Fretz and the present case is that Fretz’s criminal negligence did not involve street-racing.
81Mr. Collins also referred to R. v. Laine, 2015 ONCA 519, 327 C.C.C. (3d) 67, where the appellant, age 21, was convicted of two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. Again, these offences did not involve street-racing. The appellant was driving home from his family’s cottage with five friends, and travelling southbound on Baseline Road in the City of Kawartha Lakes. As he turned onto Baseline Road, he accelerated so that he and his friends could get “the rush feeling” as they went over hills. There were three curves in the road. The appellant nearly had an accident at the first curve, as he was driving too quickly to clear it. He encroached on the opposite lane, and had to swerve off the road onto the gravel shoulder to avoid an oncoming car. As he came out of the curve, he accelerated and reached a speed of 140 km/h. One passenger egged him on and videotaped the events. At least one of his other passengers urged him to slow down.
82As the appellant entered the third curve, he lost control of his vehicle as a result of his speed. He ran off the west (right) side of the road, turned back onto the pavement, and crossed over the road to the east side, where his vehicle flipped over and ultimately crashed into a hydro pole. Two young women in his vehicle were killed. Another passenger was seriously injured.
83The appellant’s wanton course of conduct occurred in less than two minutes and over a distance of 1.7 kilometres. He had held his G2 driver’s licence for about one year prior to the accident. He had no prior criminal record, and only a minor driving record. He was described as immature. No alcohol or drugs were involved in the offences. At the time of sentencing, he was enrolled full-time at Seneca College. The trial judge imposed a sentence of four years.
84The Court of Appeal found that the trial judge over-emphasized general deterrence and reduced the sentence to two years less a day. In so doing, the Court relied on the principle that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused, rather than solely for the purpose of general deterrence: R. v. Priest, (1996), 30 O.R. (3d) 538 (C.A.), at p. 545. In addition, the emphasis on individual deterrence rather than general deterrence is particularly applicable in the case of a youthful first offender: Priest, at p. 546; and R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para.7. Although the appellant was not, strictly speaking, a youth at the time of the offences, he was nevertheless still youthful in that he was only 21 years old.
85Mr. Collins noted that the PSR for Mr. Akhtar is very positive. Mr. Akhtar is well along the road to receiving a Bachelor of Engineering degree, and has a good future ahead of him. He has shown himself to be a responsible individual, particularly towards his family members, and has contributed what he can in terms of assisting the family financially. He has expressed remorse. Mr. Collins submits that a reformatory sentence is fit and proper in all of the circumstances, particularly given Mr. Akhtar’s age at the time of the offence. There is no reason to believe that he would not comply with strict terms of a probation order or complete a community service order.
The Principles of Sentencing
86The objectives of sentencing are set out in s. 718 of the Criminal Code. They include: the denunciation of unlawful conduct, and the resulting harm done to victims or the community; deterrence, both specific and general; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and the promotion of a sense of responsibility in offenders and an acknowledgement of the harm done.
87Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
88Section 718.2 provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. It also requires that a sentence be similar to sentences imposed on similar offenders for similar offences in similar circumstances; that the combined duration of consecutive sentences not be unduly long; that an offender not be deprived of liberty if less restrictive sanctions may be appropriate; and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Analysis
89The victim impact statements poignantly describe the devastating effects that Ms. Chan’s death has had on her family. The Ho and Gilby families continue to suffer emotionally from the trauma and untimely death of Ms. Chan, who was a vibrant person and fully engaged in the lives of each and every member of her family. All of that ended when she was suddenly killed as a result of the conduct of Mr. Akhtar and Mr. Dero. Their conduct was also responsible for the physical injuries sustained by Mr. and Ms. Ho. Mr. Ho summed up their situation in a single sentence: “The car accident has ruined our lives.”
90Nothing the court can do will change or alleviate their suffering. And nothing in these reasons is meant to diminish in any way the tragedy of Ms. Chan’s death. In determining the appropriate sentence for Mr. Akhtar and Mr. Dero, vengeance is not a factor. Rather, I must be guided by the principles of sentencing set out in the Criminal Code and the relevant case law. The sentence I impose must be the proper sentence for these offenders, who committed these offences in these circumstances.
91The aggravating factors include the following:
- Mr. Akhtar had only his G2 licence and hence was not a fully-licensed driver when he decided to engage in this risk-taking behaviour. During his testimony, Mr. Akhtar blamed the collision, in part, on the Lincoln, stating that it was malfunctioning. There was no evidence that there was, in fact, anything mechanically wrong with the Lincoln. However, if Mr. Akhtar believed that the vehicle he was driving was defective, it makes his decision to engage in a street race all the more reckless. Mr. Dero, although fully licensed, was a fairly new driver, and chose to street-race while driving a car with which he was not that familiar.
- The race took place on a city street where the speed limit was 60 km/h. The driving behaviour involved extremely high speeds – up to 144 km/h. It also involved a dangerous “side by side” pass of another vehicle, which was captured on video. One witness described the drivers of the Lincoln and Mercedes as trying to “take over each other.”
- The fact that two vehicles were involved increased the risk to others on the roadway. Mr. Akhtar and Mr. Dero deliberately took that risk. Their judgment was not impaired by alcohol or drugs.
- The racing took place on a busy city street on a Sunday evening at 8:00 p.m. It was the last day of summer. The video footage shows that there was a fairly steady flow of traffic. There were retail stores, restaurants, a used car dealership and other commercial enterprises in the vicinity of the intersection, as well as bus stops and bus shelters. Given the time of day, one would reasonably expect pedestrians, including children, to be in the area. Mr. Akhtar actually came perilously close to striking the bus shelter on the south side of Ellesmere: his Lincoln, after colliding with Ms. Ramadas’ Honda Civic, mounted the curb and finally came to rest only a few feet from the shelter. It was indeed fortunate that no pedestrians happened to be in that particular area at the time.
- Mr. Akhtar and Mr. Dero, while racing, increased their speed while ascending the hill, even though they were not in a position at that point to see what sort of traffic was on the other side of the hill or at the upcoming intersection. As Crown counsel put it, they chose to fly blindly toward the intersection. Even after they crested the hill and saw Mr. Ho’s vehicle, they did not brake immediately, but chose instead to execute a dangerous pass of another vehicle while travelling side by side.
- The racing had horrific consequences: Ms. Chan was killed, and her daughter and son-in-law were seriously injured.
- Other consequences of the street-race included the closing of the intersection for over eight hours. Many police officers and emergency personnel attended at the scene. Four of the five vehicles involved in the accident were “write-offs.”
92Counsel for Mr. Akhtar attempted to categorize the street-racing by the two accused as less serious than that in Nusrat on the basis that the race in Nusrat took place over a 44-kilometre stretch of highway. The race between Mr. Akhtar and Mr. Dero lasted two minutes at most. However, the short duration of the race does not, in my view, make Mr. Akhtar’s and Mr. Dero’s street-racing any less dangerous or blameworthy, given the nature of the road on which they were racing and the speeds at which they were travelling on that road.
93As previously stated, Ellesmere is a city street with a speed limit of 60 km/h. Unlike a highway, pedestrians are most likely to be present on such a street, particularly when there are shops, restaurants, bus stops, bus shelters, etc. in the immediate vicinity. It is also likely that cars will be stopping or slowing down in order to pull into the various businesses. I agree with Crown counsel that given the speeds at which Mr. Akhtar and Mr. Dero were racing as they approached the intersection, the potential for an accident resulting in death or serious bodily harm was high if not inevitable. No driver or pedestrian in the vicinity of that intersection would reasonably expect a westbound vehicle to crest the hill at 144 km/h. Given the extreme speeds at which the two accused were travelling, neither Mr. Ho, Ms. Ramadas, nor any other driver in the area had a chance to react or take measures to avoid the collision.
94In addition, as pointed out by Crown counsel, a city street, unlike many highways, has no barriers to block oncoming traffic. The lack of barriers increases the potential for a head collision, which is what happened in this case: after striking Mr. Ho’s Accord, the Lincoln continued in a southwest direction, side-swiped another vehicle and then crashed head-on with Ms. Ramadas’ Civic Honda, which was stopped in the eastbound turning lane.
95In mitigation, both Mr. Akhtar and Mr. Dero are young first offenders. Mr. Akhtar has expressed remorse and taken responsibility for the collision, albeit somewhat late in the proceedings. Mr. Dero, during his testimony, acknowledged that he made a “bad decision” that resulted in a tragic outcome, and stated that he was “very sorry for what happened.”
96Mr. Akhtar has good rehabilitative prospects. He has, from an early age, assumed a fair amount of responsibility in terms of helping his mother run the home, and provided financial support to her using his earnings from his part-time employment. He is described as respectful toward authority. He was diligently pursuing a degree in engineering when he was charged with these offences. After taking a year off following his arrest, he has resumed his studies at Ryerson, with the goal of becoming a civil engineer. There can be little doubt that he will eventually attain that goal. Mr. Akhtar has the support of his family. In terms of specific deterrence, he has indicated that he has no intention of ever driving again.
97Mr. Dero’s background is very similar to that of Mr. Akhtar. He comes from a supportive family, and used his earnings from his part-time employment to assist his family financially. At the time that he committed these offences, Mr. Dero was pursuing a university degree with the goal of becoming an electrical engineer. Following his arrest, he resumed his studies and, at the time of trial, had completed his third year of that program. Mr. Dero developed post-traumatic stress disorder following the collision but, unfortunately, was unable to get treatment for this condition. It is apparent from his father’s representations to me when Mr. Dero failed to appear in court on the day that I was to charge the jury that Mr. Dero had been in a fragile state of mind for some time prior to his absconding. Mr. Dero Sr. advised the court that when he returned home after work and could not find his son, he initially feared that he may have committed suicide.
98In Nusrat, the Court made it clear that the paramount sentencing principles in a case of street racing are denunciation and general deterrence. The Court also found that entering into an agreement with others to street-race – taking the life of one and risking the lives of many – constituted a deliberate endangerment of other users of the road and carried with it a high level of moral blameworthiness. Such intentional risk-taking, with horrific consequences, called for a penitentiary range sentence. Given the seriousness of the offences committed by Mr. Akhtar and Mr. Dero, a penitentiary range sentence is, in my view, also called for in this case.
99In support of his position that a fit and proper sentence is in the range of three to four years, Crown counsel relied, in part, on the decision in Tang, where a four-year sentence was imposed. I note, however, that there were a number of aggravating factors in Tang that do not apply in the present case. For example, unlike Tang, neither Mr. Akhtar nor Mr. Dero fled the scene following the collision. Unlike Tang, neither Mr. Akhtar nor Mr. Dero has an extensive driving record. Mr. Akhtar has one conviction for speeding; Mr. Dero has no driving record. Mr. Tang’s response to the fines imposed for his driving offences, five of which involved speeding, was to avoid paying them and to continue driving without a license or insurance. Tang was driving without a license or insurance at the time that he struck and killed the pedestrian.
100I also note that the speeds involved in the Tang case were well in excess of the speeds in the present case. Mr. Tang’s speed and that of the two drivers with whom he was racing was estimated to be 200 km/h as they sped along a city street in Vancouver in a “V-shape” formation. Tang was 24 years old at the time that he committed the offences. Mr. Dero and Mr. Akhtar were somewhat younger: Mr. Dero was only 19; Mr. Akhtar was 20 years old. Unlike Tang, Mr. Akhtar and Mr. Dero are first offenders. Mr. Tang had failed to pay any money toward the fine imposed with respect to his criminal conviction for possession of counterfeit money, and failed to complete a community service order. Unlike Mr. Akhtar, who is pursuing an engineering degree, Mr. Tang, who was 25 at the time of sentencing, had not completed high school and was not committed to any particular career path.
101Sentencing is a highly individualized process that requires the assessment and balancing of many factors in order to determine the most appropriate sentence. The gravity and moral blameworthiness of the offences committed by Mr. Akhtar and Mr. Dero call for a penitentiary range sentence. However, I also bear in mind that Mr. Akhtar and Mr. Dero are young first offenders with rehabilitative potential, and that a first sentence of imprisonment for such offenders should be as short as possible. Having considered and weighed the principles of sentencing as set out in ss. 718 to 718.2 of the Code and the submissions of counsel, I find that a fit and proper sentence in this case is 30 months imprisonment on each count, to be served concurrently.
Disposition
102The sentences imposed on Mr. Akhtar and Mr. Dero are as follows:
Count 10 (Criminal negligence causing death while street racing): 30 months Count 11 (Criminal negligence causing bodily harm to Christopher Ho): 30 months, concurrent Count 12 (Criminal negligence causing bodily harm to Susanna Ho): 30 months, concurrent
103Counts 1 to 9 in the indictment are stayed on the basis of the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.
Ancillary Orders
104Pursuant to s. 259(3.3) of the Code, both Mr. Akhtar and Mr. Dero are subject to a driving prohibition order for a period of ten years.
105There is also an order under s. 109 of the Code prohibiting Mr. Akhtar and Mr. Dero from possessing firearms, ammunition, or explosive substances for ten years.
106There is an order of forfeiture with respect to the property seized by police, including the Lincoln and Mercedes.
107Finally, there is an order with respect to both Mr. Akhtar and Mr. Dero that they provide bodily fluids for forensic DNA analysis.
Garton J.
Released: October 19, 2018
