Court File and Parties

Court File No.: 18-400000554 Date: 2020-02-14 Superior Court of Justice – Ontario

Re: Her Majesty the Queen And: Jorge Gomes

Before: S.F. Dunphy J.

Counsel: Iain Sunderland, for the Queen Alexander Morris, for the Defendant

Heard at Toronto: February 12, 2020

Reasons for Decision - Sentencing

[1] I convicted Mr. Gomes of two counts of operating a motor vehicle while impaired and causing bodily harm on August 15, 2019. For a variety of reasons – including defence counsel commitments to a murder trial and Mr. Gomes being unable to return to the country from a vacation – sentencing was delayed until today. There is no issue of this delay giving rise to s. 11(b) Charter issues.

Circumstances of the offences

[2] The circumstances of the offences are described in detail in my reasons for judgment when I convicted Mr. Gomes (2019 ONSC 4808). I shall quote the summary of the incident from that judgment:

[6] Just before 2:00 a.m. on Saturday morning, June 3, 2017, three men left an Eglinton Avenue bar west of Dufferin Street named “Stefano’s Sports Bar” and proceeded to cross the street from the north side heading south. They were heading towards the home of one of them on Ennerdale Road proceeding on a slightly diagonal path, Ennerdale intersecting with Eglinton about half a block east of their location. As they were crossing, at least two members of the group noticed the headlights of an approaching eastbound vehicle that had crested the slight hill coming up from Caledonia Rd. Those lights belonged to a patrolling tow truck being driven by Mr. Bryan Martins. The group stopped to let Mr. Martins’ vehicle pass them by at or about the centre line of the roadway before proceeding to cross the southern half of the road.

[7] They never got a chance to continue their crossing. Soon after Mr. Martins’ tow truck had passed them, they were hit by a four-door pick-up truck driven by Mr. Gomes proceeding in the opposite direction. None of them saw it coming. The violence of the collision pitched two of the men, Mr. Marchese and Mr. De Vellis, into the air. They suffered very serious injuries from which they have not yet recovered. The third man, Mr. Hedman, was not hit and escaped without injury.

[8] Mr. Gomes’ pick-up truck came to a stop after a short distance, leaving several yards of tire marks in its rear. Photographs taken at the scene show that the tire marks were quite straight. There is no sign in those marks at least of any evasive action having been attempted by Mr. Gomes. The violence of the collision is evident from the fact that the two victims were thrown some distance in the air, landing in front of the place where the braking pick-up truck finally came to a full stop. The front end of the vehicle suffered very severe damage – the hood was crumpled, the grill ripped off and signs of a violent collision are obvious on the police accident scene photographs. Engine fluids were visible leaking from the damaged pick-up truck on to the roadway.

[10] Mr. Gomes remained at the scene and was arrested, subsequently providing the breath tests from which it was determined that his blood alcohol concentration at the time of the accident was between 150mg and 185mg of alcohol per 100ml of blood which figure, the parties agree, represents the blood alcohol content of Mr. Gomes’ blood while driving the pick-up truck that struck Mr. Marchese and Mr. De Vellis at the time of the accident.

[3] The injuries sustained by the two young men run down by Mr. Gomes’ truck is difficult to capture fully. Mr. DeVellis was only 21 years of age at the time of the accident while Mr. Marchese was 32 years of age. They both testified at the trial and it is clear that their road to recovery will be long and difficult and they will never be the same again. I quote again from my judgment to describe their injuries:

[79] Mr. Marchese suffered very serious injuries. He had multiple fractures to his skull and face. There was significant nerve and muscle damage. He suffered a concussion and required a catheter and breathing tube. He underwent two separate surgeries, including one that involved an incision in his abdomen from his chest to his pelvic region. Parts of his pelvis were crushed, and his hip was damaged and will need replacement within ten years. He has been undergoing extensive rehabilitation therapy. He still walks with difficulty and is undergoing further tests on his back. Almost two years later, he remains some distance away from whatever sustainable level of recovery from the accident he can look forward to.

[80] Mr. De Vellis suffered damages of even greater severity. His brain was bleeding in three places. His neck, pelvis, ribs and collarbone were all cracked. His fibula was broken and all of the ligaments in his left leg were torn. He received more than 100 staples and stitches and lost his spleen. He has a large scar from surgery exploring damage to his internal organs and had bleeding from his bladder, kidney and pancreas. He spent several months in physiotherapy and has more that needs doing. He too is far from fully recovered and the recovery he can aspire to is not yet known.

[4] Mr. Marchese is now living in his mother’s basement. He provided a particularly poignant victim impact statement that underlines how much was taken from him and how long a road he has to some level of recovery and how bleak the life he has been left with appears to him:

He ruined my life. Stole my prime. Every day is useless…No work/no friends/no nothing. No money left, I’m dwindling my savings on medical bills. He stole my right to earn a living as an honest plumber…I lost my right to travel our splendid nation or relocate to any non-OHIP…

Circumstances of the offender

[5] Mr. Gomes is 37 years old without a prior criminal record. He has worked his entire life in the construction industry, working alongside his brother-in-law these past 12 years.

[6] Mr. Gomes is part of a close-knit family of first generation Portuguese immigrants. Without children of his own, he has developed close relationships with his nieces. His parents, who do not speak English and have health issues, depend upon him to help them. He has submitted a folder of moving letters from friends and family that attest to his good character.

Mitigating and aggravating circumstances

[7] I find the following mitigating circumstances are present in this case: a. Mr. Gomes worked co-operatively to narrow the issues at trial – he did not contest that he was driving while impaired and took issue only with the issue of whether the collision was avoidable.

[8] I find the following aggravating circumstances have been proved beyond a reasonable doubt: a. Mr. Gomes was driving significantly beyond the posted speed limit in the area; and b. Mr. Gomes had a blood alcohol concentration that was far beyond the level at which impairment is produced – he had blood alcohol between 150 and 185 mg./100 ml of blood.

[9] The collateral immigration consequences that may be visited upon Mr. Gomes fall into something of a hybrid category. They are not mitigating circumstances strictly speaking so much as they are part and parcel of the circumstances of the offender that must be considered in fashioning a fit and proper sentence.

[10] Mr. Gomes is a permanent resident of Canada and has been since he came here at the age of six almost thirty-two years ago. He is currently thirty-seven years of age and was thirty-four at the time of the collision. Each of the offences for which he was convicted carries a maximum sentence of up to ten years in prison. As such, Mr. Gomes is now deemed to be inadmissible to Canada on grounds of serious criminality pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and is liable to being made the object of removal proceedings at any time. Pursuant to s. 64(2) of the IRPA, no appeal may be made from a decision of the Immigration Division that he be removed if his inadmissibility was with respect to a crime that was punished by a term of imprisonment of at least six months.

[11] I cannot say whether proceedings will be initiated to remove Mr. Gomes from Canada nor can I say whether compassionate or humanitarian pleas to stay any resulting order would be heeded by the Minister. The decision to bring such proceedings is a discretionary one and I have no information as to when or how often that discretion is exercised in fact. I can only say that a sentence of six months or longer would make his removal a distinct possibility and the consequences of removal upon Mr. Gomes would be life-changing.

[12] It is clear from R. v. Pham, 2013 SCC 13 that the risk of deportation cannot be used to justify a sentence which is otherwise inconsistent with the applicable sentencing principles nor ought this court to use the sentencing process to circumvent the policies established by Parliament in the IRPA. There is a process that Parliament has created to review matters related to removal and deportation and that process does not involve this court.

[13] In the present case, it is quite clear that a sentence under six months would be manifestly unfit in the circumstances here present and I cannot be swayed by sympathy for an offender facing dramatic if collateral immigration consequences to reverse engineer a sentence that is otherwise unfit to avoid the prospect of removal by immigration authorities should they determine to exercise their statutory discretion to do so.

[14] The foregoing being understood, collateral immigration consequences are a relevant circumstance to be considered in sentencing on the same level as youth, prior history, prospects of rehabilitation, family circumstances, etc. This offender faces potential collateral consequences of his actions that are materially more severe than those faced by a similarly situated offender who is a Canadian citizen. His life as he has come to know it may be fundamentally changed. If he is deported, it may be years before he will have an opportunity to return even for a visit and his path may be a difficult one.

Applicable sentencing principles

[15] The Criminal Code prescribes a number of principles that the sentencing judge is required to consider in fashioning a fit and proper sentence. The court is required to fashion a sentence proportionate to the gravity of the offence and the degree of moral blameworthiness of the offender. These must be considered in light of the mitigating and aggravating circumstances found to be present. I found the survey of the jurisprudence in this area undertaken by Felix J. in R. v. Mitchell, 2016 ONCJ 731 to be a particularly helpful one.

[16] This case involves a collision caused by a driver who was impaired to a very significant degree by alcohol. The collision inflicted severe and even catastrophic injuries upon two men and narrowly missed a third. Our Court of Appeal and the Supreme Court of Canada have underscored in recent years that the predominant sentencing objectives in cases such as this must be general deterrence and denunciation: R. v. Clouthier, 2016 ONCA 197; R. v. Lacasse, 2015 SCC 64. Lacasse also confirms that a sentencing judge may take local conditions into account in considering the gravity of the offence.

Position of the parties

[17] The position of the Crown was that Mr. Gomes should be sentenced to a penitentiary term of three years plus a driving suspension of three years. While the Crown concedes that immigration consequences can be taken into account as a collateral impact upon the offender, the Crown said that this cannot be applied in such a way as to take the sentence below the appropriate range that is necessary in this case. The Crown also cautioned about any reliance being placed on cases arising prior to R. v. Muzzo, 2016 ONSC 2068 and Lacasse, because of the very marked recent tendency reflected in those cases to recognize the need for a higher sentencing range for this category of offence more focused on the primary goals of deterrence and denunciation.

[18] The defence position is that the appropriate range for a first time offender with no criminal record in the position of Mr. Gomes would be in the range of nine to fourteen months but the court was asked to consider a sentence that might permit Mr. Gomes to remain in Canada given his immigration status. The loss of immigration status is highly likely in the event of a sentence of six months or longer and such loss would be devastating on Mr. Gomes and his family. The defence urged me to find that Mr. Gomes presents with excellent prospects for rehabilitation, has strong pro-social ties to the community and the risk of re-offence is low.

Discussion and analysis

[19] Impaired driving causing bodily harm is the type of offence where offenders often present as solid “pillar-of-the-community” type men and women with otherwise impeccable characters and without any criminal record. When our courts speak of the need for deterrence, it is a particular type of conduct and not the consequences of the conduct that is the primary focus. An accident that has occurred cannot be undone. Nobody – sober or impaired – gets behind the wheel intending to inflict grievous bodily harm upon someone else. Impaired drivers often delude themselves into thinking that they pose no risk to anyone when they take to the road. Law enforcement cannot hope to catch more than a tiny fraction of the drivers who choose to take that risk (or who convince themselves that there is no risk) by driving while impaired. The role of exemplary sentences is to alter the mindset of the person who is about to get behind the wheel while impaired. Such sentences are designed to result in more people saying “it’s not worth the risk of being caught” if the objective risk of harming their fellow citizens is insufficient to deter their behaviour.

[20] The particular circumstances of the community in which these offences occurred must also be considered. This impacts to some degree an assessment of the gravity of the offence.

[21] This offence occurred in mid-town Toronto. Toronto is a dense city. Although the offence occurred in the early hours of the morning, this is a city whose residents are active and going about their business at all hours of night and day. Tight public spaces are shared between pedestrians, cyclists, cars, trucks, construction equipment, transit vehicles etc. Some of these – pedestrians and cyclists especially – are particularly vulnerable to the actions of operators of the others. Driving while impaired is culpable conduct in any community. Doing so in a dense urban environment is an irresponsible risk multiplier. The ubiquitous presence of diverse transit options renders any excuse offered both hollow and insincere. Denunciation and deterrence take on particular weight as sentencing goals in this community because the high price for this odious behaviour continues to be paid by pedestrians, cyclists and others day after day.

[22] This offence resulted in bodily harm of a particularly grievous nature. Words do not do justice to the violence of this collision. Mr. Gomes was driving a large pick-up truck. The operative word is truck. The violence of the collision destroyed much of the front end of a heavy vehicle and sent two people flying a considerable distance in the air, landing on hard concrete with great force as well. It is no understatement to state that the lives of the two men who were run down have been altered permanently and in a drastic fashion. Their ability to work, have families, travel and enjoy life has been replaced with a life revolving around therapy and rehabilitation. When I saw them at the trial, they were a long, long way from fully recovered. Mr. Marchese has been reduced to attempting to rekindle in some fashion the hopes and dreams for life that a two-ton hurtling piece of metal crushed so completely. It is a miracle that either of them survived.

[23] These offences were very serious ones indeed.

[24] Mr. Gomes must also bear the full measure of his moral responsibility for these offences. His moral responsibility began before the collision occurred. It started with his decision to take his keys out of his pocket and get behind the wheel of what was nothing less than a lethal weapon in his hands in the condition that he was in. I make no assumptions about how alert or tired he was at that time of morning – there is no evidence on the subject before me. However, his blood alcohol content was far, far beyond the level at which a significant degree of impairment is present. He had between 150 and 180 mg. of alcohol per 100 ml. of blood in his system. He was visibly impaired in the observation of witnesses. The poor judgment that he exercised in taking the wheel was compounded by poor judgment in driving at a relatively high rate of speed, a speed that deprived him of precious reaction time to respond to evolving dangers. Mr. Gomes rolled the dice more than once that night. He bears full responsibility for his actions.

[25] Mr. Gomes presents – as do many offenders convicted of alcohol-related offences – as a very solid citizen. He is a support for his parents, an integral part of a close-knit family. He has worked his whole life and is by all accounts a contributing, valuable member of our community. He has no criminal record. The leniency that these aspects of his individual make-up might otherwise command is overshadowed by the paramountcy that must be given to the objectives of general deterrence and denunciation in this case, by the gravity of the offence and his degree of moral blameworthiness in it.

[26] I find myself unable to accept the defence submission that the sentencing range for similar cases is at or near the nine to fourteen month range suggested. Of the cases cited by the defence, the decision of Faeita J. in R. v. Bulland, 2019 ONSC 4220 appears to me to be the most comparable to the present one. In Bulland, a 39 month sentence was imposed upon an offender of similar age who inflicted catastrophic and likely life-long injuries upon a 23-year old young man. The offender in Bulland had a prior careless driving conviction but was also found to have been driving with a much lower level of blood alcohol than Mr. Gomes.

[27] Two lives have been tragically and almost certainly permanently impacted. They will never be the same and one can only pray that science and patience will restore them to some measure of the life they once enjoyed. A sentence below the level requested by the Crown would in my view be manifestly unfit as failing to recognize the gravity of the offences and the imperative of adequate denunciation and general deterrence. In my view, that proposed sentence already accounts quite adequately for the mitigating circumstances present and the potential impact of this sentence upon Mr. Gomes’ immigration status.

Disposition

[28] Mr. Gomes, please stand.

[29] No sentence that I can pass will change what happened on June 3, 2017. You and the victims of that collision will be living with the consequences of what happened for a very, very long time if not forever. I hope that you have at least taken to heart the lessons to be learned from this incident.

[30] You are hereby sentenced to three years in custody on each of the two counts, to be served concurrently.

[31] Upon your release, you will be subject to a three-year driving prohibition.

[32] I have ordered the two sentences to be served concurrently having incorporated into my assessment the gravity of these offences and the fact that two victims were so grievously impacted. I have also considered the impact of this accident upon the third person in the group – Mr. Hedman – who escaped injury by a whisker but was subjected to the horror of witnessing the collision and its effect upon his two friends.

S.F. Dunphy J. Date: February 14, 2020